1. The act charged as an offence is the bringing a boat into the Negapatam river in disregard of a general order passed by the port conservator to the effect that boats should not be brought in while the flag W is flying. This act is said to be punishable under Section 8 of the Ports Act. That section authorizes the conservator to give directions for carrying into effect any rule passed under Section 6 of the same Act and goes on to make it penal to disobey any such lawful direction. It has therefore to be seen whether the conservator was carrying into effect any valid rule passed under the Act. The rules to which we have been referred are those numbered (v) and (viii) being rules passed with reference to Clauses (f) and (k) of Section 6 respectively. In our opinion, there is clearly no connection between the former of these rules and the direction which in this case has been disobeyed.
2. Rule (viii) is a rule of wider scope for it requires boat-owners to 'carry out at all times all orders issued by the conservator in connection with the plying of their-boats and which are not inconsistent with the regulations issued by Government.'
3. In order to put an interpretation on the Rule (viii) and to see whether it covers the present case we think that the rule must be read with the clause of the Act under which it is framed and the other clauses specifying the matter in respect of which rules may be made by the Government. It must be presumed that the Government intended to pass a rule which they were authorized to pass by the terms of Clause (k) of the section and a construction which has the effect of extending the operation of the rule to matters not covered by Clause (k) ought, we think if possible, to be avoided. Now when it is seen that by Clause (a) of the section, the Government is empowered to make rules for regulating the time at which vessels are to enter or leave any port it seems tolerably clear that the rules to be framed under Clause (k) were not intended to regulate the entry or exit of vessels in the matter of time. This being so, we do not think that Rule (viii) passed with reference to the latter clause can be taken to refer to such matters. Accordingly the direction of the conservator not to bring boats into the river when a certain flag is flying cannot be a direction for carrying into effect the rule in question and therefore no lawful direction was disobeyed. In referring to Clause (a), we do not overlook the facts that boats may go out of the river without leaving the port. That may be so. We should still be disposed to think that the 'regulation' intended by Clause (k) was a regulation different in kind from that intended by Clause (a).
4. There is however another reason why the conviction cannot, be supported. The charge is not based immediately on an alleged breach of Rule (viii) ; indeed, no rule at all is mentioned in the charge. The conviction can only be supported on the ground that the direction of the conservator which was disobeyed was a direction lawfully given in pursuance of an authority lawfully conferred on him by Rule (viii) or some other rule. To support the conviction it has to be shown that the Government is by Section 6 of the Act authorized to empower other persons to make rules such as the one which has been disobeyed in the present case. In our opinion, the contention cannot rightly be maintained and if Rule (viii) or any other rule purports' to give the conservator authority to make such rules, that rule is to that extent ultra vires and therefore void. In the case of power being by statute given to the Government or other public body to make rules having the force of law, the maxim delegata potestas non delegatum must, we think, be applied. When the legislature entrusts to some public body--it may be the Executive Government or a Corporation--the duty of making rules, such public body cannot, in our judgment, relieve itself of the responsibility and depute other agencies to discharge the duty. The authority to make rules must remain in the hands to which it was entrusted. It is absurd to suppose that the legislature intended this important authority to be exercised by any person whom the Government might choose to select. The rule laid down by the conservator may be a perfectly reasonabfe one and it may be one which the Local Government may make under Section 6. On this we offer no opinion. At present it is enough to say there is no such rule having the force of law and therefore the conviction as for breach of it must fall to the ground.
5. For these reasons we think the conviction should be set aside and the fine, if paid, refunded. We would add that in these cases where the charge in effect relates to an alleged breach of a rule passed under an Act, care ought to be taken to specify the particular rule said to have been infringed.
6. Ordered accordingly.