Raman Nayar, J.
1. As I see it, theonly question in this case is whether Clause (1) of Rule 50(1) of the Prevention of Food Adulteration Rules made by the Central Government under Section 23 of the Prevention of Food Adulteration Act, 1954, and, with it, the notification dated 11-1-1962 issued there under by the State Government, are ultra vires the Section. The rule says that no person shall manufacture, sell, stock, distribute or exhibit for sale the articles specified therein except under a licence. Clauses (a) to (k) specify various articles of food; but what the impugned clause, Clause (I), does, is to include within the prohibition 'any other article of food (xxxxx) which the State Government may by notification specify.' It was in pursuance of this authority that the State Government by its notification dated 11-1-1962, published in the Gazette of the 6th February 1962, specified a number of articles of food, tea being one of them, as articles which no person shall manufacture, sell, stock, distribute or exhibit for sale, except under a licence. The petitioner, a travelling salesman of a ten company, was admittedly going about selling tea to the stockists of the company; and, admittedly he had taken no licence. He has been convicted under Section 16(1)(a) read with Section 7(v) of the Act and sentenced to pay a fine of Rs. 25 in default to undergo simple imprisonment for ten days. If the impugned clause and the notification made thereunder are valid the conviction must stand; if not it has to be set aside.
2. Section 23 of the Act, so far as is material for the purpose, runs as follows:
'23. Power of the Central Govt. to make rules:--
(1) The Central Government may, after consultation with the Committee and subject to the condition of previous publication, make rules-
X x x x
(f) prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food;
(g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health;
x x x x
(2) All rules made by the Central Government under this Act shall, as soon as possible after they are made be laid before both Houses of Parliament.'
3. It is under the latter part of Clause (f) of Sub-section (1) of the Section, 'regulating by the issue of licences the manufacture or sale of any article of food' and under Clause (g) that R. 50 has been made. The choice of the articles of food the sale of which is to be regulated by the issue of licences, involves the exercise of discretion and judgment and is not a mere ministerial or mechanical act. It is clear from the Section that this choice must be made by rule. That involves three things: (1) the choice must be made by the Central Government in exercise of its judgment; (2) that judgment must be exercised in consultation with the expert committee constituted under Section 3 of the Act which would be in a position to advise it as to whether it is necessary or not in the public interest to bring a particular article of food within the regulation: and (3) it can take a final decision only after 'previous publication.' (There is a fourth, namely, the laying of the rules before both Houses of Parliament enjoined by Sub-section (2) of the Section. But I am leaving that out of account since failure to do that might not render the rule invalid -- see Muthuswamy Koundcn v. State of Kerala I960 Ker LJ 1319 But, under the impugned clause, the choice is to be made by the State Government in the exercise of its own judgment, without consulting the committee, and without previous publication. Quite apart from any question of delegation by a delegate and it is quite clear from the language and from the content of Section 23 as also from Section 24, which expressly con-fines the rule-making power of the State Government to matters not falling within the purview of the rule-making power conferred on the Central Government by Section 23, that there is no power of delegation of the power to choose, conferred on the Central Government either expressly or by implication -- it is quite apparent that this is in contravention of Section 23 and that the clause is therefore bad. (Compare, for example, Rule 44A where what the Section requires to be done by rule is done by the rule and all that is left to be done otherwise, namely, by notification by the State Government, is to specify the date on which the rule is to come into force in the State), liven if the power to specify the articles of fund to be brought under regulation by licence were conferred on the Central Government and not on the State Government, the impugned clause would still be bad for dispensing with the consultation with the committee and the previous publication enjoined by the section
4. A lot has been said as to the scope of the maxim, delegatus non potest delegare inrelation to subordinate legislation: as to whether the choice of the article of food to be brought under regulation by licence is not a mere ministerial act; as to whether the impugned clause is not but a piece of mere conditional legislation involving no surrender of real legislative power; and as to whether, for these reasons, the delegation, it any, made by the clause is not within permissible bounds as was indeed held by a Division Bench of this Court in Imbich Koya v. State of Kerala 1962 Ker LT 1012 the decision that has necessitated this reference to a Full Bench. And a number of cases, beginning of course with the inevitable R v. Burali, (1878) 3 App Cas 889, and including Powell v. Apollo Candle Co., (1885) 10 AC 282, Baxter v. Ah Way, (1909) 8 Com WLR 626, Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan (1931) 46 Com WLR 73, Shannon v. Lower Mainland Dairy Products Board, (1938) AC 708: (AtR 1939 PC 36), Emperor v. Benoari Lal, AIR 1945 PC 48, Edward Mills Co. Ltd v. State of Ajmer, (S) AIR 1955 SC 25 and Mohd. Hussain v. State of Bombay, AIR 1962 SC 97 to men tion only a few, have been cited. All this was perhaps to be expected, but it is not necessary to say much about what has been said since nothing that has been said touches the question, as I have said at the very beginning, is the only question for decision in this case, namely, whether the impugned clause comes within the power conferred on the Central Government by Section 23 of the Act. And all the cases cited, like the cases considered in 1962 Ker LT 1012, are cases of delegations made by legislatures sovereign in their own appointed spheres and not cases of the exercise by a delegate of power conferred on him by such a legislature
5. It is said that the majority view subscribed to by Faz1 Ali, Patanjali Sastri and Mukherjea, JJ. in In re, Article 143, Constitution of India, and Delhi Laws Act (1912), AIR 1951 SC 332 is that the maxim delegatus non potest delegare has no application in the field of Indian Constitutional law. If by this is mean that it has no application to delegations made by the Indian legislatures for the simple reason that they are not delegates but principals, with plenary powers within the fields assigned to them, so that the real limitation is that they should not abdicate the essential legislative function, then perhaps there is no need to quarrel with this proposition. But if it is meant that the maxim has no application when a delegate of an Indian legislature on whom no power of further delegation has been conferred either expressly or by implication, purports to delegate a power conferred on him, it must be said that there is nothing in the decision which lends the least support to such an unwarrantable proposition.
6. A decision in point so far as the present case is concerned is Allingham v. Min of Agriculture, (1948) 1 All ER 780. There a statute which gave the Minister of Agriculture power to 'give such directions with respect to the cultivation, management or use of land for agricultural purposes as he thinks necessary' required that the direction be given by notice relating to the land specified therein, served on the person by whom the direction is to be complied with. The statute empowered the Minister to delegate his functions to any person or, body of persons appointed or approved by him, and the Minister accordingly delegated his functions to a committee known as the war agricultural executive committee This committee decided on the nature of the direction to be given to the appellant in that case but left it to its executive officer to specify the particular piece of land to which the direction was to apply. It was held that, on the ordinary principle of delegatus non potest delegare, the committee could not delegate its power to some other person or body and that the appellants had committed no offence in disobeying the direction. The choice of the particular piece of land to which a direction of this kind should apply certainly does not stand on a higher footing than the choice of the articles of food to which the licensing provisions envisaged by Section 23 of the Prevention of Food Adulteration Act should apply, and, on the question of the validity of the delegation made by the impugned clause. I think that this derision is very apposite.
7. Reference may perhaps be made also to Barnard v. National Dock Labour Board. (1953) 2 QB 18. But there the power delegated was, it would appear, held to be a judicial power with regard to which there could never have been any doubt that no delegation was permissible. The principle deduced by Alien (Law and Orders, Second Edition, page 20ft) from these two decisions is that where by statute certain specific executive functions are committed to a person, he cannot, without authority, entrust them to a deputy of his own choice. The learned author then goes on to observe that in respect of legislative functions, however, the position is not so clear and that although, on principle, it would seem that a legislative delegate who, without express authority, puts another in his place, is acting ultra vires, in the absence of judicial decision it is impossible to speak with confidence. I should have thought that, in this respect, a legislative function stands on a much higher footing than an executive function, and that, if an executive function cannot be delegated, much less can a legislative function.
8. In 1962 Ker LT 1012 the impugned clause was upheld on the ground that it was a permissible piece of conditional legislation and did not therefore offend the maxim dele gatus non potest delegare; but the question whether it was permissible under the statute, the Prevention of Food Adulteration Act, 1954. Section 23, under which if was made was not considered. With great respect I do not think that, on this point, that case was rightly decided.
8a. I would allow the petition, set aside the conviction and sentence recorded against the petitioner and acquit him.
9. I agree.
Govinda Menon, J.
10. I agree tothe order proposed, but would add a few words. The question that arises for decision in this case is whether Clause (I) in Rule 50 of the Rules framed under the Prevention of Food Adulteration Act empowering the State Government to specify, by notification, any other article of food besides those mentioned in Rule 50 is ultra vires the section.
11. Section 23 of the Act gives power to the Central Government to make rules, among other things, prohibiting the sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food. In exercise of the powers conferred by this section, the Central Government after consultation with the Central Committee for Food Standards made rules, the same having been previously published as required under the section. In Rule 50 it was laid down that no person shall manufacture, sell, stock, distribute or exhibit for sale any of the following articles of food except under a licence and Clauses (a) to (J) give the list of the articles. To that was added Clause (1) 'any other article of food which the State Government may by notification specify'. What is contended is that this rule authorising another body like the State Government to choose the article is not permissible under Section 23(f) and (g) of the Act.
12. In the Bench decision in 1962 Ker LT 1012 the discussion was centred on the question whether it was an illegal and unconstitutional delegation of legislative powers and it was held that the legislature has not in any way stripped itself of its essential powers or assigned to the administrative authority anything but an acressory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. Learned counsel docs not dispute the right of the Parliament to delegate the power to the Central Government, but only challenges the right of the Central Government in authorising the State Government to add to the list. The choice of the articles of food, the sale of which has to be regulated by issue of licence has, under the statute, to be decided by the Central Government alone and that too after previous consultation and previous publication. By authorising the State Government to add to the list, the Central Government is acting against the terms of Section 23. Pointed attention was, unfortunately not drawn to this aspect of the case in the case in 1962 Ker LT 1012. My learned brother Raman Nayar, J., has discussed the entire question and I respectfully agree that for the reasons stated by him Clause (1) of Rule 50(1) and the notification by the Slate Government are ultra vires of the section. The conviction and sentence have, therefore, to be set aside.