1. This is a reference made by the Municipal Magistrate First Class Indore City under the Codes of Civil and Criminal Procedure (Amendment) Act No. XXIV of 1951. Section 432 (as amended) of the Code of Criminal Procedure says that where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision, contained in an Act, Ordinance or Regulation, the determination of which, is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court. The Municipal Magistrate is of opinion that the Deputy Director of Food has no power or jurisdiction under Section 5 of the Madhya Bharat Essential Supplies (Temporary Powers) Act No. 3 of 1948 to make regulations about the Madhya Bharat Rationing Order and therefore the Madhya Bharat Rationing Regulations of 1949 is ultra vires and no conviction can be based on that.
2. It appears that the Madhya Bharat Government by a Notification No. 2 dated the 4th February, 1949 notified for general information that the Madhya Bharat Government has directed that the power of the Government to make orders under Section 4 of the Madhya Bharat Essential Supplies (Temporary Powers) Act, Samvat 2005, in respect of control over Food shall be exercisable by the Director of Food and in pursuance of this the Director of Food under Section 5 of the Madhya Bharat Essential Supplies (Temporary Powers) Act, Samvat 2005, is given powers to make regulations in respect of matters referred by Section 4: Vide Madhya Bharat Gazette dated the 20th August 1949-page 286. Under Clause 12 of the aforesaid Madhya Bharat Rationing Order, 1949 the Director of Food, or any officer or authority empowered in this behalf by him, may in respect of any area or areas make regulations. Under Clause (12) the Director of Food has delegated his power to the Deputy Director of Food: vide Office of the Director of Food, Notification No. 27, dated the 13th July 1949, where it is stated that the officer empowered to make regulations under Clause 12 of the said Order shall be a Deputy Director of Food (Rationing), Madhya Bharat.
3. The question is whether the Director of Food has got jurisdiction or authority to delegate powers of making regulations to the Deputy Director.
4. In my opinion such a delegation is not proper. The Government having empowered the Director of Food under Section 4 of the Essential Supplies Act, Samvat 2005 to make regulations under Section 4, the Director of Food had no Jurisdiction to delegate the powers to the Deputy. The Government having indicated that the Director of Food shall alone make such regulations, he alone can pass regulations and he cannot himself delegate any portion of his powers to any other official unless he is expressly authorized to do so. When the Government says that it delegates the powers to the Director of Food, it excludes the possibility of further delegation of the power by the person so empowered. Hence it was not competent for him to delegate powers to the Deputy Director of making regulations under Clause (12) of the Madhya 3harat Rationing Order, 1949.
4a. The learned Advocate General contended that under Section 18 of the Madhya Bharat General Clauses Act, Samvat 2007 the law relating to the chief or superior of an office shall apply to the deputies or subordinates lawfully performing the duties of that office in the place of their superior, to prescribe the duty of the superior. In my opinion Section 18 of the General Clauses Act does not apply to the facts of this particular case. This was not merely a ministerial act but it involved personal discretion and as such the power to make regulations which is vested by the Government in the Director of Food cannot be delegated to the Deputy Director. The same view is taken in Kunni Lal v. Rex AIR 1949 All 32, In this particular case the District Magistrate had delegated certain powers to be exercised by the Deputy Town Rationing Officer and the Deputy Town Rationing Officer framed rules and orders, it was held by the Allahabad High Court that the rules and orders were ultra vires and no conviction can be based upon any contravention thereof. With regard to the delegation of powers we have got an authoritative pronouncement by the Supreme Court reported in 'THE CONSTITUTION OF INDIA AND DELHI LAWS ACT (1912) ETC, 'IN RE' 1951 SCJ 527, about the validity of certain provisions of the Delhi Laws Act, 1912. There Mahajan J. observed that the nature of the duty discharged by the Legislature is such that it is implicit within it that it should be discharged by the person entrusted with it and by no others. In order words, the nature of the public duty itself demands it and the principles of legislation require it. The correct position on the other hand is that unless expressly or impliedly authorized, such delegation is not permissible.
5. Here the Government has specified that the Director of Food shall make regulations under Clause (12) of the Rationing Order and therefore the Director of Food has no authority to further delegate powers to the Deputy Director. The power of making regulations under the Rationing Order is not a mere ministerial act and therefore the provision of Section 18 of the Madhya Bharat General Clauses Act would not apply.
6. I, therefore, accept the reference made toy the Municipal Magistrate First Class Indore City and hold that the Madhya Bharat Rationing Regulation, 1949 is ultra vires and no conviction can be based for contravention thereof.