1. The point involved in these Rules is a short one and may be stated as follows:
2. In these cases, action has been taken for the violation of the Colliery Control Order, 1945, (hereinafter referred to as the order). It is said that the Order which was made under the Defence of India Rules had expired on or about the first week of August 1946, and the attempt to save it by passing the Essential Supplies Ordinance on 25-9-1946, was of no effect, as that Ordinance could not save the Order which had expired by lapse of time and was dead.
If the facts stated be correct, namely, that the Order had already expired by lapse of time, then obviously it could not be saved by the Essential Supplies Ordinance or in any other way. The answer is that it did not expire. As I shall presently point out, this point is expressly dealt with in a decision of the Federal Court and is scarcely arguable.
I shall, however, state briefly the reasons why it should be rejected. On 3-9-1939, the Governor General issued a Proclamation of Emergency under Section 102, Government of India Act, 1935. On 29-9-1939, the Defence of India Act was passed (Act 35 of 1939) and the Rules were framed under it, called 'the Defence of India Rules'.
On 27-6-1940, the India and Burma (Emergency Provision) Act, 1940, was passed by the British Parliament which amended Section 72 of the Ninth Schedule of the Government of India Act. UnderSection 72, as it originally stood, Ordinances were limited to an effective life of six months only, from the date of promulgation. Sub-section (3) of Section 1 of the said Act, however, provided that in respect of Ordinances made under Section 73 during the period specified in Section 3 of the Act, Section 72 should have effect as if the words 'for the space of not more than six months from its promulgation' were omitted.
On 29-12-1945, the Colliery Control Order was passed by the Governor General in Council acting under Rule 81 (2), Defence of India Rules. It will be remembered that under the Defence of India Act, it was to continue until the termination of the war and six months thereafter. It came to be doubted as to what would constitute the termination of war which raged in various theatres and terminated on different dates.
The result was that on 5-2-1946, an Ordinance No. 10 of 1946 was passed, namely, the Termination of War Definition Ordinance whereby it was laid down that war was deemed to have terminated on 1-4-1946. Thus the Defence of India Rules and together with it the Colliery Control Order would come to an end on 30-9-1946. On 1-10-1946, how, ever, the Essential Supplies Act was passed, preceded by the Essential Supplies Ordinance on 26-9-1946 and under these two pieces of legislation, the Colliery Control Order would survive.
It is argued that Section 3, India and Burma (Emergency Provisions) Act, 1940 (3 and 4 Geo: 6, Ch. 33), stood as follows:
'The period referred to in the preceding sections is the period beginning with the date of the passing of this Act 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 this Act'.
3. On 20-3-1946 a declaration was made by His Majesty by an Order in Council whereby the date referred to in Section 3 as the end of emergency was published as 1-4-1946. It is argued that under Section 1 Sub-section (3) of the Act, the restrictions imposed by Section 72 in Schedule IX, Government of India Act, 1935, were removed but removed temporarily so that immediately this Act ceased to be operative with regard to the legislation to which Section 72 applied, the restrictions revived.
If It did revive, then of course the Defence of India Rules will have expired sometime in the first week of August, 1946. This argument, however, is of no substance and having been expressly put forward in the case of -- 'J.K. Gas Plant . v. Emperor' AIR 1947 FC 38 (A), was repelled.
Their Lordships of the Federal Court held that the effect of the India and Burma (Emergency Provisions) Act, 1940 upon the Acts and Ordinances that were made during the period of their operation was not temporary but permanent. In other words, during that period, the Ordinances that were effected by it, ceased for all times to be restricted to six months, and would come to an end unless they were repealed or were replaced by some other piece of legislation. Spence, C. J. says as follows: '..... the clear effect of the words of the Act on Section 72 is that Ordinances promulgated under that Sub-section during the period specified in Section 3 of the Act are subject to no time-limit as regards their existence and validity, unless imposed by the Ordinances themselves, or other amending or repealing legislation, whether by Ordinance or otherwise'.
4. It was also decided that the Essential Supplies Act was a valid Act and that there was notime lag between the expiry of the Defence of India Rules and the promulgation of the Act. Thisis a position which has also been affirmed in various subsequent cases, amongst which reference may be made to the case of the -- 'State of Bombay v. Virkumar Gulab Chand' : 1952CriLJ1406 and, -- 'Chamber of Commerce Hapur v. State of Uttar Pradesh' (S) : 1SCR838 .
This is the only point taken and has failed. If there was no time lag as alleged, the Colliery Control Order continued to be effective and all legal actions for the violation of it are valid.
5. These Rules, therefore, fall and must be discharged. Interim orders are vacated.
6. The petitioner must Pay the costs to the appearing Respondents. Hearing fee is assessed atone gold mohur in each of these applications.