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Sridhar Achari and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1948All182
AppellantSridhar Achari and ors.
RespondentEmperor
Excerpt:
.....that act. 2. the ordinance in question, as stated in the preamble thereto was promulgated by the governor-general in the exercise of the powers conferred upon him by section 72, as set out in schedule 9, government of india act, 1935. according to that section the governor-general may in case of emergency make and promulgate ordinances for the peace and good government of british india or any part thereof and any ordinance so made shall have force for the space of not more than six months from its promulgation. thus, all the ordinances promulgated by the governor-general between 27th june 1940 and 1st april 1946, which conform to the provisions of sub-section (3) of section 1 of the 1940 act, are in all respects like an act passed by the indian legislature and cannot be regarded as..........judge.2. the ordinance in question, as stated in the preamble thereto was promulgated by the governor-general in the exercise of the powers conferred upon him by section 72, as set out in schedule 9, government of india act, 1935. according to that section the governor-general may in case of emergency make and promulgate ordinances for the peace and good government of british india or any part thereof and any ordinance so made shall have force for the space of not more than six months from its promulgation. the india and burma (emergency provisions) act, 1940, by sub-section (3) of section 1, however, provided that section 72 shall, as respects ordinances made during the period specified in section 3 of this act, have effect as if the words 'for the space of not more than six.....
Judgment:
ORDER

Harish Chandra, J.

1. The applicants are connected with Rangji's temple at Bindraban in the district of Mathura. The High Denomination Bank Notes (Demonetisation) Ordinance, 1946, (Ordinance, 3[III] of 3946) was promulgated on 12th January 1946, and by Sub-para (2) of para. 6 of the Ordinance every owner of a high denomination bank note desiring to tender it for exchange was required to prepare in the form set out in the schedule three copies of a declaration signed by him giving in full the particulars required by that form and deliver them together with the high demomination bank note which he desired to exchange to a branch of the Reserve Bank or to a scheduled bank or to a Government Treasury. Copies of such forms were duly delivered by the applicants within the time fixed under the Ordinance. On 4th March 1947, however, a charge - sheet was submitted against them under Para. 7 of the Ordinance alleging that the applicants had knowingly made in the said declaration certain false statements. The applicants made an application to the Magistrate before whom the case was proceeding saying that the Ordinance in question was no longer in force and that, therefore, they could not be prosecuted under Para. 7 of that Ordinance. The learned Magistrate did not accept the contention of the applicants and held that the Ordinance was still in force in view of Sub-section (3) of Section 1, India and Burma (Emergency Provisions) Act, 1940, read along with Section 3 of that Act as well as the Order in Council issued under that section on 20th March 1946, declaring the first day of April 1946, as the date on which ended the emergency which was the occasion of the passing of that Act. The applicants went up in revision to the learned Sessions Judge of Mathura who agreed with the learned Magistrate and rejected the application and they have now come up in revision to the High Court from this order of the learned Sessions Judge.

2. The Ordinance in question, as stated in the preamble thereto was promulgated by the Governor-General in the exercise of the powers conferred upon him by Section 72, as set out in Schedule 9, Government of India Act, 1935. According to that section the Governor-General may in case of emergency make and promulgate ordinances for the peace and good government of British India or any part thereof and any Ordinance so made shall have force for the space of not more than six months from its promulgation. The India and Burma (Emergency Provisions) Act, 1940, by Sub-section (3) of Section 1, however, provided that Section 72 shall, as respects ordinances made during the period specified in Section 3 of this Act, have effect as if the words 'for the space of not more than six months from its promulgation were omitted.' Section 3 of the Act provided that the period referred to in that Sub-section would be 'the period beginning with the date of the passing of this Act', viz., 27th June 1940, and 'ending with such date as His Majesty may by Order in Council declare to be the end of the emergency which was the occasion of the passing of the Act.' By the Order in Council promulgated on 20th March 1946, the end of this period of emergency was declared to be the first day of April 1946. The contention 'of learned Counsel for the Crown accordingly is that inasmuch as the present Ordinance was promulgated by the Governor-General during the period of 'emergency' which was the occasion of the passing of the India and Burma (Emergency Provisions) Act 1940, it will be deemed to be still in operation and that, therefore, the prosecution of the applicants under Section 7 of the Ordinance is quite proper. It is pointed out that if the words 'for the space of not more than is months from its promulgation' are omitted from Section 72, any Ordinance promulgated by the Governor-General under that section shall have in all respects the same force of law as an Act passed by the Indian Legislature and cannot be terminated except by another Ordinance or an Act passed by the Indian Legislature. Thus, all the ordinances promulgated by the Governor-General between 27th June 1940 and 1st April 1946, which conform to the provisions of Sub-section (3) of Section 1 of the 1940 Act, are in all respects like an Act passed by the Indian Legislature and cannot be regarded as temporary in their nature.

3. The contention of learned Counsel for the applicants, however, is that the intention of the provisions contained in the 1940 - Act was not to make Ordinances promulgated by the Governor-General during the period specified above permanent like an Act of the Indian Legislature, but that the intention was merely to keep them in force during that period or, at the outside, during a further period of six months beyond the first day of April 1946. It is pointed out that there is an inherent difference between an Act of the Indian Legislature and an ordinance inasmuch as the latter is necessarily of a temporary character. It is said that under Section 67B, Government of India Act, 1935, as set out in Schedule 9 of that Act, the Governor-General is also empowered to promulgate Acts in certain special circumstances. No doubt, as Section 72 has been framed, an Ordinance differs from an Act in being of a temporary nature. But obviously it was open to the Parliament, if it so chose to provide for the promulgation of ordinances by the Governor-General of a permanent character in cases of emergency. On a plain reading of Sub-section (3) of Section 1 of the 1940 Act my opinion is that the Parliament did in fact provide for the promulgation of Ordinances of a permanent nature by the Governor-General in cases of emergency during the period beginning from 27th June 1940, and ending with 1st April 1946.

4. In Emperor v. Benoari Lal Sarma , their Lordships of the Privy Council point out in another connection that the question whether an 'Ordinance is intra vires or ultra vires does not depend on considerations of jurisprudence or of policy' and that

it depends simply on examining the language of the Government of India Act and of comparing the legislative authority conferred on the Governor-General with the provisions of the Ordinance by which he is purporting to exercise that authority.

In this case also the question depends on a simple examination of the language of the Government of India Act, 1935 and the India and Burma (Emergency Provisions) Act, 1940. It is, however, pointed out that in the same judgment their Lordships have made certain observations which seem to indicate that the intention of the India and Burma (Emergency Provisions) Act, 1940, was not to give Ordinances promulgated by the Governor-General during the period specified above a permanent character. The words are:

The Governor-General purported to make and promulgate the Ordinance under a power conferred on him by Para. 72 of Schedule 9, Government of India Act, 1935. That paragraph which must, of course, be read in the light of the India and Burma (Emergency Provisions) Act, 1940 (whereunder the operation of the words for the space of not more than six months from is 'promulgation' was suspended during the, period therein specified) provides etc.

5. I do not find anything in the words, which. I have underlined, (here italicized) to support the contention of learned Counsel for the applicants. There is no doubt that the India and Burma (Emergency Provisions) Act, 1940, did in fact suspend the operation of the words 'for the space of not more than six months from its promulgation' as contained in Section 72 and the effect of such suspension, in my opinion, was to make all Ordinances promulgated by the Governor-General during the period specified in that Act and which conform with the provisions of Section 1 of the Act of a permanent character and in all respects like an. Act passed by the Indian Legislature.

6. My attention has also been drawn to two-cases reported in 1943-6 F.L.J. One of these is the case in Emperor v. benoari Lal Sarma the case which subsequently went up to the Privy Council and to which reference has just been made reported on p. 79. The other is the case in Emperor v. Shibnath Banerjee . In the first case, on p. 116 occurs the following in the judgment of Varadachariar C.J.:

But there are two fundamental points of difference which have a material bearing on the present question, one is that by the very terms of Section 72 of Schedule 9 to the Constitution Act, the operation of the Ordinance is limited to a period of six months (and even now it is only temporary, though the particular limit has been, removed) etc.

7. In the other case the following occurs in the judgment of Zafrulla Khan J. on p. 159:

The fact that the Court cannot go behind a declaration of emergency made by the Ordinance-making, authority cannot affect this question. The power was intended to be availed of and could be availed of only in an emergency, whereas ordinary legislation is not governed by any such limitation. Similarly, an Ordinance is necessarily of limited duration, whether under Section 72 or under the terms of the India and Burma (Emergency Provisions) Act of 1940.

These are merely passing remarks and in both these judgments it seems to have been assumed without any discussion that the India and Burma. (Emergency Provisions) Act, 1940, does no more than extend the period of validity of an Ordinance promulgated by the Governor-General during the period specified in that Act beyond the limit of six months as prescribed under Section 72 as it originally stood. The learned Judges were not called upon to consider that question at all and the points in issue in both these cases were quite different. I do not think that these cases lay down any law in regard to the effect of the India and-Burma (Emergency Provisions) Act, 1940, on ordinances promulgated by the Governor-General during the period specified by that Act.

8. Another case, which has been cited before me, is In re Thiyagarayanchettiarj ('47) 34 A.I.R. 1947 Mad. 325. In this case the-following occurs at p. 327:

As regards the second contention no doubt an ordinance promulgated by the Governor-General before 1-4-1946 is by virtue of the provisions of the India and Burma (Emergency Provisions) Act, 1940, not restricted to six months but will continue to have effect for the period provided in the Ordinance or, if no period I is provided, until the emergency is declared by the Governor-General to have ceased to have effect.

Here again, it does not appear that their Lordly ships were called upon to consider the exact interpretation to be put upon the provisions of the 1940 Act and the question that had been raised before them in that case did not in fact call for any such interpretation of that Act. As a matter of fact, the questions for decision before that Court in that case were entirely different. I, therefore, see no reason to depart from the plain meaning, as it appears to me of the words used in the 1940 Act.

9. The next point raised on behalf of the applicants is that the restoration of the clause 'for the space of not more than six months from its promulgation' to Section 72, would have the effect of continuing the life of any ordinances promulgated by the Governor-General during the period I of the suspension of this clause to the first day I of April 1946, or at the outside, for a further period of six months beyond that date. Learned Counsel for the applicants is, however, unable to make a definite statement as to when exactly such Ordinance will expire. The argument appears to be without force and the restoration of I the said clause with effect from 1st April 1946, cannot, in my opinion, have retrospective effect so as to make the Ordinances already promulgated 1 by the Governor-General during the period that the clause remained under suspension of a limited duration. During the suspension of that clause all ordinances promulgated by the Governor-General without any time limit as to their validity were, to all intents and purposes, like an Act passed by the Indian Legislature and the subsequent restoration of the clause cannot affect the period of their validity.

10. Lastly, it is urged on behalf of the applicants that the 1940 Act suspended the operation of the words 'for the space of not more than six months from its promulgation' occurring in a Section 72 of Schedule 9, Government of India Act, 1935, only with respect to Ordinances promulgated by the Governor-General in the case of such an emergency as was contemplated by that Act. It is pointed out that the 1940 Act was passed while the war was going on and that the emergency contemplated by that Act would be more like the emergency contemplated by Section 102, Government of India Act, 1935. The emergency contemplated by that section is, it is pointed out, 'a grave emergency' 'whereby the security of India is threatened, where by war or internal disturbance.' Section 72, it is said, refers to all kinds of emergencies and the argument is that only such ordinances, as were promulgated by the Governor-General in the case of a 'grave emergency' 'whereby the security of India was threatened whether by war or by internal disturbance,' would be subject to the provisions of the 1940 Act. The present Ordinance, it is pointed out, was passed on 12th January 1946, sometime after the war had ended and it is contended that the 1940 Act would not apply to it. To my mind the argument is without force. The words used in the 1940 Act are quite general and do not indicate any intention to put ordinances to be promulgated by the Governor-General into two such classes and, in my opinion, the present ordinance, like any other ordinances passed during the period specified in the 1940 Act, is governed by the provisions of the 1940 Act and is not of limited validity and must be deemed to have been in force on the date on which the case against the applicants was instituted. I accordingly agree with the Courts below that there is no legal bar to their prosecution and dismiss the application. The trial may now proceed.

11. It is certified that the case involves a substantial question of law as to the interpretation of the Government of India Act, 1935.


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