Ragho Sao vs Emperor

Agarwala, J.—The petitioner has been convicted under Rule 81(4), Defence of India Rules, for contravening Rule 81(2)(b) of the said rules and sentenced to six months'' rigorous imprisonment and to pay a fine of Rs. 25. It was alleged that on 26th July 1942, he sold two bottles of kerosene oil at the rate of 8frac12; annas a bottle, whereas the controlled price of kerosene oil was 4 annas a bottle. At the trial the petitioner pleaded guilty. He preferred an appeal to the Sessions Judge on the question of sentence u/s 412, Criminal P.C., and that appeal was dismissed. He has now applied to this Court in revision, contending that the fixing of the price of kerosene oil by the controlling authority was not legal and that the Defence of India Act, in so far as it purports to invest the Provincial Government with power to authorise certain officers to fix the prices of commodities, was invalid as contravening the provisions of the Constitution Act.

In order to appreciate this argument it is necessary to refer to certain provisions of the Constitution Act and of the Defence of India Act. The Provincial Legislature was authorised by the Constitution Act to legislate with regard to trade and commerce within the Province and with regard to the production, supply and distribution of goods: see items 27 and 29, Provincial Legislative List. This general power to legislate with regard to trade and commerce and the production, supply and distribution of goods, in so far as the import and export of goods into any Province are concerned, is curtailed by Section 297(1)(a). That section provides that the Provincial Legislature, merely by virtue of the entries in the Provincial Legislative List, is not invested with power to prohibit or restrict the entry into or export from the Province of goods of any class or description.

It has been contended, in the first place, in this case, that the fixing of the price of kerosene oil amounts to a restriction of the entry of that commodity into this Province. It is not contended that the fixing of the price of kerosene directly restricts the import of oil into this Province, for, obviously, it does no such thing. What is contended is that the result of the fixing of the price of kerosene oil is that as dealers are unwilling to sell oil at the fixed price, they do not import it, and thus, indirectly, the import of oil is restricted into the Province.

In my opinion, the fixing of the price at which a particular commodity may be sold in the Province does not fall within the prohibition contained in Clause (a) of Section 297(1). The mere fact that the Legislature has been prohibited from restricting the entry of a particular commodity into the Province does not interfere with its powers to legislate with regard to that commodity in other respects. But even if it be assumed that the fixing of an uneconomic price at which a particular article is to be sold indirectly results in a restriction of the import of the articles, it would have first to be shown as a fact that the price fixed has brought about that result. In this case there is no evidence of that.

Furthermore, Caluse (a) of Section 297(1) merely provides that the entries in the Provincial Legislative List relating to trade and commerce and the production, supply and distribution of goods are not by themselves to be taken as conferring upon the Provincial Legislature the power to prohibit or restrict the entry into or export from the Province of goods of any class or description. This is made clear by the opening words of Clause (a) which are:

By virtue of the entry in the Provincial Legislative List relating to trade and commerce with in the province, or the entry in that list relating to the production, supply and distribution of commodities.

Now, in the present instance, it is not by virtue of the entries in the Provincial Legislative List that the Provincial Legislature has taken steps to control prices. It is by virtue of power derived, not from the Constitution Act, but from another Act altogether--an Act of the Central Legislature, namely, the Defence of India Act. Section 2 of that Act empowers the Central Government by notification in the official gazette to make rules for, inter alia, maintaining the supplies and services essential to the life of the community. In Sub-section (2) of Section 2 are enumerated a number of measures on which the Central Legislature is so empowered to make rules. By Clause (xx) of Sub-section (2) one of the subject-matters is the control of agriculture, trade or industry for the purpose of regulating or increasing the supply of, and the obtaining of information with regard to, articles or things of any description whatsoever which can be used in connexion with the conduct of war or for maintaining supplies and services essential to the life of the community.

Then, by Sub-section (4), the Central Government was authorised to direct that any power conferred by Sub-section (1) upon the Central Government should, in such circumstances and under such conditions, if any, as may be specified in the direction be exercised or discharged by any officer or authority subordinate to the Central Government, or, whether or not his power or duty relates to a matter with respect to which the Provincial Legislature has power to make laws, by any Provincial Government or by any officer or authority subordinate to such Government. By Notification No. 899 dated 29th November 1941, power was conferred to the Provincial Government, so far as it was necessary for maintaining supplies and services essential to the life of the community, to control the price or rates at which an article or things of any description whatsoever might be sold or hired [see Rule 81(2)(b) of the Defence of India Rules]. Sub-section (5) empowers the Provincial Government to delegate to certain officers powers conferred on it under Sub-section (4). By Notification No. 318, dated 2nd February 1942, the Provincial Government, acting u/s 2(5), Defence of India Act, authorised District Magistrates, Additional District Magistrates and Sub-divisional Magistrates to fix the prices at which certain articles should be sold. Among these articles was kerosene oil. It is not in dispute in the present case that the Sub-divisional Magistrate did in fact fix the retail selling price of kerosene oil at four annas a bottle.

It is contended, however, that Sub-section (4) and (5) of Section 2, Defence of India Act, are ultra vires the Central Legislature in that they in effect repeal Section 297(1)(a), Constitution Act. Section 102, Constitution Act, however, confers on the Central Legislature power to make laws for a province or any part thereof, with respect to any matters enumerated in the Provincial Legislative List, after a proclamation of emergency has been issued by the Governor-General. Such a proclamation was issued by the Governor-General on 3rd September 1939, and the preamble to the Defence of India Act shows that it was by virtue of the power conferred u/s 102(1), Constitution Act, that the Central Legislature enacted the Defence of India Act. The Provincial Government, therefore, in exercising the power to control the prices, was acting not, to use the language of Clause (a) of Section 297(1), "by virtue of the entries in the Provincial Legislative List," but by virtue of the power conferred by the Defence of India Act, and, after the issue of the proclamation by the Governor-General, the Central Legislature had full authority to legislate with regard to any matter contained in the Provincial Legislative List.

It was suggested that the Central Legislature could not, in exercising the power conferred by Section 102(1), delegate any power with which it was itself invested to an authority prohibited by the Act, and that, as Section 297(1)(a) bars the Provincial Legislature from prohibiting or restricting the import or export of goods into the province, the Provincial Legislature could not, in exercise of powers conferred on the Central Legislature by Section 102, be invested with powers to legislate on these matters. No bar, however, was pointed out to us in the Constitution Act which would prevent the Central Legislature from delegating to the Provincial Legislature the power to deal with matters referred to in Section 297(1)(a). Section no was relied upon in this connexion. So far as it is material to the argument that was advanced, that section reads as follows: "Nothing in this Act shall be taken to empower to Federal Legislature to make any law amending any provision of this Act." It is said that the effect of Section 2(2)(xx), Defence of India Act, amounts to an amendment of Section 297, Constitution Act, when the power to legislate with respect to matters mentioned in Section 297 is delegated to a Provincial Government.

That contention, in my opinion, is entirely untenable. Section 297 has not been amended by the Defence of India Act and is entirely unaffected by that Act. The Provincial Legislature, even after the enactment of the Defence of India Act, is still debarred from prohibiting or restraining the import or export of goods within the province in so far as such power is based on any entry in the Legislative List. There is, however, nothing in that section which affects the power of the Provincial Legislature when its powers are derived from some source other than the entries in that list.

In my view, therefore, there is no substance in the points which have been raised in support of the present application, and, I would, therefore, discharge the rule.

Imam J.

I agree.