MEGHRAJ KOTHARI I'. DELIMITATION COMMISSION September 20 & Ors. v. DELIMITATION COMM. (Mitter & Ors.

TJ:ie Opium and Narcotic Drug Act which was a Dominion statute contained a schedule wherein narcotic drugs were enumera ted, but which up to the date of the order in question did not contain Codeine. Under the provisions of that order a charge was laid against the respondent, a retail druggist, that he did without lawful excuse disobey an Act of the Parliament of Canada for which no penalty or other mode of punishment was expressly provided,. to wit; Paragraph two of regulations dated 11th day of September, 1939, of the War Measures Act, by wilfully selling Codeine, a to the narcotic drug mentioned Opium and Narcotic Drug Act without first having had and ob fained a written order or prescription therefor signed and dated by a physician, contrary to sec. 164, Criminal Code of Canada. Section 164 of the Criminal Code enacted specifically that the offence must consist in wilfully doing any act which was forbid den or omitting to do any act which was required to be done by an Act of the Parliament of Canada. In his judgment Rinfret, J. observed: (page .114) :- in Part Two of the Schedule "It is an Act of the Parliament of Cauada which the guilty person must have disobeyed without lawful excuse." His Lordship agreed with the Trial Judge and with the majority of the Court of Appeal that in the premises s. 164 of the Criminal Code had no application and said:- E "Of course, the War Measures Act enacts that the orders and regulations made under it "shall have the force of law. It cannot be otherwise. They are made to be obeyed and, as a consequence, they must have the force of law. But · · that is quite a different thing from saying that they will be deemed to be an Act of Parliament." Taschereaul' J. put the matter rather tersely (see. at p .. 124) : - "An order in Council is passed by .the Executive Council, and an Act of Parliament is enacted by the House of Comrnons· and by the Senate of Canada. Both are entirely different, and unless there is a provision in the law stating that the Orders in Council shall be considered as forming part of the law itself, or that any offence against the regulations shall be a violation of the Act, it cannot be said that the violation of an Order in Council i.S a violation of an ·Act of Parliament within the meaning of section 164 of the Criminal Code." F G H The observations from the judgment of Taschereau, J. pofot out the difference between something which has the force of law as. 408 SUPREME COURT R.EPOR.TS [1967] I S.C.R;' .distinguished from an Act of Parliament itself. The Order in -Council in the Canadian case, although it had the force of law, was not a provision contained in an Act of Parliament and there fore although there was a violation of the Order in Council there was no violation of any section of an Act of the Parliament of the Dominion of Canada. Counsel for the appellant also drew our attention to the judg ment of this Court in Sangram Singh v. Election Tribunal, Kotah, ) There the Court had to consider the effect .Bhurey Lal Baya.( 1 of s. 105 of the Representation of the People Act, 1951 (Act XLIH ·Of 1951) which provided that "every order of the Tribunal made under this Act shall be final and conclusive''. The contention there put forward was that this provision put an order of the Tri bunal beyond question either by the High Court under Art. 226 of the Constitution or by the Supreme Court in appeal therefrom. It was further submitted that the intention of the Legislature was that the decisions of the Tribunals were to be final on all matters whether of fact or of law, and they could not be said to commit an error of law when acting within the ambit of their jurisdiction. They decided what the law was. This submission was turned -down by this Court and it was observed after referring to Hari Vishnu v. Ahmed lshaque(l) that "the Court laid down in general terms that the jurisdiction under Art. 226 having been conferred by the Constitution, limitations cannot be placed on it, except by the Constitution itself." Jn this case we are not faced with that difficulty because ·Constitution itself provides under Art. 329(a) that any law relating to the delimitation of constituencies etc. made or purporting to be made under Art. 327 shall not be called in question in any court. Therefore an orde.r under s. 8 or 9 and published under s. IO(l) would not be saved merely because of the use of the expression .. shall not be called in question in any court". But if by the publi -cation of the order in the Gazette of India it is to be treated as law made under Art. 327, Art. 329 would prevent any investigation by .any court of law. In dismissing the petition under Art. 226 of the Constitution the High Court of Madhya Pradesh relied exclusively on the decision of this Court in N.P. Punnuswami v. Returning Officer, Namakkal Constituency and others(') which proceeded on the basis of certain -concessions made. There the appellant was a person who had filed a nomination paper for election to the Madras Legislative Assembly from the Namakkal constituency which was rejected. The appellant thereupon moved the High Court under Art. 226 (I) )1955) 2 S.C.R. p. l at pp. 6 and 7. (2) )1955] l S.C.R. 1104. (3) )1952] S.C.R. 218. A B c D E F G H MEGHRAJ v. DELIMITATION COMM. (Mitter, J.) 409 of the Constitution praying for ,a writ of certiorai to quash the order of the Returning Officer rejecting his nomination paper and to direct the said officer to include his name in the list of vaild nominations to be published. The High Court dismissed the appli cation on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by rea5on of Art. 329 (b) of the Constitution. The Court pointed out (at p. 225) :- "A notable difference in the language used in Arts. 327 and 328 on the one hand, and Art. 329 on the other, is that while the first two articles begin with the words "subject to the provisions of this Constitution", the last article begins with the words "notwithstanding anything It was conceded at the Bar that the effect Constitution". of this difference in language is that whereas any law made by Parliament under Art. 327, or by the State Legis- 1atures under Art. 328, cannot exclude the jurisdiction of the High Court under Art. 226 of the Constitution, that jurisdiction is excluded in regard to matters provided for in Art. 329." Reference was also made by counsel to certain other concessions which appear at pp. 233 and 237 of the report. It will be noted, however, that the decision in that case did not proceed on the con cessions made. The Court examined at some length the scheme of Part XV of the Constitution and the Representation of the People Act, f951 which was passed by the Parliament under Art. 327 of the Constitution to make detailed provision in regard to al matters and all stages connected with elections to the various It was there argued that since the Legislatures in the country. Representation of the People Act was enacted subject to the pro visions of the Constitution, it could not bar the jurisdiction of the High Court to issue writs under Art. 226 of the Constitution. This was turned down by the Court observing:- "This argument, however,_ is completely shut out by reading the Act along with Art. 329(b). It will be noticed that the language used in that Article and in s. 80 of the Act is almost identical, with this difference only that the Article is preceded by the words "notwithstanding anything in this Constitution". (p. 232) The Court went on to observe at p. 233 :- _"It may be pointed out that Art. 329 (b) must be read as complimentary to lause (a) of that Article Clause (a) bars the jurisdiction of the courts with regard to such law as may be made under Arts. 327 and 328 relating to the delimitation of constituencies or the allot ment of scats to such constituencies .... If Part XV of the B c D II G H 410 SUPREME COURT REPORTS [1967] l S.C.R. Constitution is a code by itself, i.e., it creates rights and provides for their enforcement by a special tribunal to the exclusion of·all courts including the High Court, there can be no. reason for asswning that the Constitution left one small part of the election process to be made the subject matter of contest before the High Courts and thereby upset the time schedule of the elections. The more reasonable view seems to be that Art. 329 covers all "electoral matters". An examination of ss. 8 and 9 of the Act shows that the matters therein dealt with were not to be subject to the scrutiny of any court of law. Section 8, which deals with the readjustment of the number of ,seats, shows that the Commission must proceed on the basis of the latest census figures and by order determine having regard to the provisions of Arts. 81, 170, 330 and 332, the nwnber of seats in the House of the People to be allocated to each State and the number of seats, if any. to be reserved for the Sche duled Castes and for the Scheduled Tribes of the State. Similarly, it was the duty of the Commission under s. 9 to distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State to single member territorial constituencies and delimit them on the basis of the latest census figures having regard to the provisions of the Consti tution and to the factors enumerated in els. (a) to (d) of sub-s. (1). (I) Sub-section (2) of s. 9 shows that the work done under sub-s. was not to be final, but that the Commission (a) had to publish its proposals under sub-s. ( L) together with the dissenting proposals, if any, of an associate member, (b) to specify a date after which funher considered by it, (c) to consider the proposals could be all objections and suggestions which may have been received before the date so specified, and for the purpose of such consideration, to hold public sittings at such place ·or places as it thought fit. It is only then that the Commission could by one or more order, determine the delimitation of Parliamentary constituencies as also of Assembly constituencies of each State. In ·our view, therefore, the objection to the delimitation of constituencies could only be entertained by the Commission before the date specified. Once the orders made by the Commission under ss. 8 and 9 were published in the Gazette of India and in the official ~azettcs of the States concerned, these matters could no longer be reagitated in a court of law. There seems to be very If the orders made under good reason behind such a provision. ss. 8 and 9 were not to be treated as final, the effect would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from .court. to court. Section 10(2) of the Act clearly demonstrates the mten!Jon of the Legislature that the orders under ss. 8 and 9 published under B c D E Jl G H MEGHRAJ v. DELIMITATION COMM. (Mitter, J.) 411 A B c D E F G H s. 10 (I) were to be treated as law which was not to be questioned in any court. "It is true that an order under s. 8 or 9 published"under s. 10(1) is not part of an Act of Parliament, but its effect is to be the same. The situation here bears some comparison with what obtained in Harishankar Bag/a and another v. The State of Madhya Pradesh.(') There s. 3 of the Essential Supplies {Temporary Powers) Act, 1946, provided that the Central Government, so far as it appeared to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equi table distribution and availability at fair prices, might by order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Under s. 4 it was open to the Central Government by notified order to direct that the power to make orders under s. 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by such officer or authority subordinate to the Central Government or such State Government or such officer or authority subordinate to a State Government as may be specified in the direction". Section 6 of the Act read as follows:~ "Any order made under s. 3 shall have effect notwith standing anything inconsistent therewith contained in any enactment other than this Act or any instrument ha, ing effect by virtue of any enactment other than this Act." Under powers conferred by s. 3 the Central Government pro mulgated on September 10, 1948, Cotton Textiles (Control of .Movement) Order, 1948. Section 3 of the said order provided that no person shall transport or cause .to be transported by rail, road, air, sea or inland navigation any cloth, yarn or apparel except under and in accordance with a general permit notified in the Gazette of India by the Textile Commissioner or a special transport permit issued by the Textile Commissioner. The appellant Hari shankar Bagla and his wife were- arrn<ted at Itarsi by the Railway Police for contravention of s. 7 of the Essential Supplies (Tempo rary Powers) Act, 1946 read with cl. (3) of the Cotton Textiles (Control of Movement) Order, 1948 having been found in possession of new cotton cloth weighing over six maunds which was being taken by them from Bombay to Kanpur without any permit. The State of Madhya Pradesh contended before this Court that the judgment of the High Court thats. 6 of the Act. was unconstitutional was not justified. This contention was upheld by this Court and it was observed:- "By enacting s. 6 Parliament itself has declared that an order made under s. 3 shall have effect notwithstanding any (I) [1955] S.C.R. 380. M15Sup Cl/67-13 ~12 SUPREME COURT REPORTS (1967] I S.C.R. inconsistency in this order with any enactment other than this Act. This is not a declaration made by the delegate but the Legislature itself has declared its will that way in s. 6 .... The power of the delegate is only to make an order under s. 3 . Once the delegate has made that order its power is exhausted. Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act." Similarly it may be said here that once the Delimitation Com mission has made orders under ss. 8 and 9 and thev have been published under s. 10(1), the orders are to have the' same effect as if they were law made by Parliament itself. Reference was also made by counsel for the respondent to the judgment of this Court in Kai/ash Nath and another v. State of U.P. and others.(') There under s. 4 of the U.P. Sales Tax Act the State Government was empowered either to exempt certain kinds of transactions from the payment of sales tax completely, or to allow a rebate of a portion of the tax payable. In pursuance of that, the Uttar Pradesh Government issued a notification that with effect from December I, 1949 the provisions of s. 3 of the Act (relating to the levy of sales tax) shall not apply to the sales of cotton cloth or yam manufactured in Uttar Pradesh, made on or after December I, 1949 with a view to export such cloth or yarn outside the territories of India on the condition that the cloth or yarn is actually exported and proof of such actual export is furnished. It was held by this Court that "this notification having been made in accordance with the power conferred by the statute has statutory force and validity and, therefore, the exemption is as if it is contained in the parent Act itself." In Jayanti/a/ Amrit Lal Slwdhan v. F. N. Rana and others(2) the question for consideration by this Court was the effect of a noti fication of the President of India under Art. 258(1) of the Constitution. The President of India by a notification dated July 24, 1959, under Art. 258(1) of the Constitution entrusted with the consent of the Government of Bombay to the Commissioners of Divisions in the State of Bombay the functions of the Central Government in rela tion to the acquisition of land for the purposes of the Union. Two new States were constituted by the Bombay Reorganisation Act (XI of 1960) and the Baroda Division was allotted to the State of Gujarat. In exercise of the powers entrusted by the notification ssued by the President on July 24, 1959, the Commissioner of the Baroda Division notified under s. 4{1) of the Land Acquisition Act (I of 1894) the appellant's land as being needed for a public purpose, - - - - - A.l.R. 1957 S.C. 790. (2) [1964) S S.C.R. p. 294. A B c D E F G H MEGHRAJ v. DELIMITATION COMM. (Mitter, J.) 413 A and authorised the Special Land Acquisition Officer, Ahmedabad, to perform the functjons of the Collector under the Act. The Special Acquisition Officer after .considering the objections raised by the appellant submitted this report to the Commissioner who issued a declaration under s. 6(1) of the Act. The appellant then moved the High Court of Gujarat under Arts. 226 and 227 of the B Constitution- for a writ, but his petition was dismissed. His case inter a/ia was that the President's notification under Art. 258 (1) was ineffective after the partition since the consent of the Govern ment of the newly formed State of Gujarat to the entrustment of functions to its officer had not been obtained as required by Art. 258 (1). c D E F Article 258 (1) of the Constitution reads:- "Notwithstanding anything in this Constitution the President may, with the consent of the Government of a ·State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends". One of the contentions put forward before this Court was that the power exereised by the President was executive in character and the functions which might be entrusted to a State Government under Art. 258(1) were executive and as such entrustment of such executive authority was not law within the meaning of s. 87 of the Bombay Reorganisation Act which made provisions for maintaining the territorial extent of the laws eve!) after the appointed day. On this basis, it was argued that the Commissioners of the new State of Gujarat after May 1, 1960 were incompetent by virtue of the Presidential notification to exercise the functions of the Union under the Land Acquisition Act. It was observed by the majority Judges of this Court at p. 308:- "The question which IllJJSt be considered is whether the notification issued by the President is law within the meaning of s. 87 read with s. 2 ( d) of the Bombay Reorgani sation Act, 11 of 1960." G After analysing the three stages of the constitutional process leading to the ultimate exercise of function of the Union Government the Court observed (at p. 309) :- • "By Art. 53 the executive power of the Union is vested in the President and is exercisable by him either directly or through officers subordinate to him in accordance with the Constitution and the executive power of the Union by Art. 73 extends subject to the provisions of the Constitution: (a) to the matters with respect to which Parliament has power to make laws; and H 414 SUPREME COURT REPORTS [ 1967] l S.C.R. (b). to the exercise of such rights, authority and ju risdiction as are exercisable by the Government of India by virtue of any treaty or agreements: Provided that the executive power referred to in sub-cl. (a) shall not, save as expressly provided in the Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Le gislature of the State has power to make laws. Prima facie, the executive power of the Union extends to all matters With respect to which Parliament has power to make laws and which the power of the Parliament extends". respect of matters The Court then went on to consider the nature of the power exercised by the President under Art. 258(1 ). It noted that by item 42 List III the subject of acquisition of property fell within the Concurrent List and the Union Parliament had power to legislate in respect of acquisition of property for the purposes of the Union and by Art. 73(1)(a) the executive power of the Union extended to It was observed that the acquisition of property for the Union. "by Art. 298 of the Constitution the executive power of the Union extends to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purposes. The expression "acquisition, holding and disposal of property" would. in our judgment, include com pulsory acquisition of property. That is a provision in the C onsti tution which within the meaning of the proviso to Art. 73( I) expressly provides that the Parliament may acquire property for the Union and consequently executive power of the Union in rela tion to compulsory acquisition of property is saved thereby. power of the State to acquire land notwithstanding ... Reference was made also by tlie majority of Judges to the case of Edll'ard Hills Co. Ltd. v. State of Ajmer( 1) where it was held that an order made under s. 94(3) of ·the Government of India Act, 1935 was. notwithstanding the repeal of the Government of India force. Act, 1935, by Art. 395 of the Constitution, Finally, it held by the majority of Judges (p. 315):- "We see no distinction in principle between the noti fication which was issued by the Governor General in Edward Mills' case, and the notification with which we arc dealing in this case. This is not to say that every order issued by an executive authority has the force of law. lf'the order is purely administrative, or is not issued in exercise of any statutory authority it may not have the force of law. But where a general order is issued even by an executive ----- - 0) f955J I C.S.R. 735. A B c D E F G H MEGHRAJ v. DELIMITATION COMM. (Mitter, J.) 415 A B c D E authority which confers power exercisable under a statute, and which thereby in substance modifies or adds to the statute, such conferment of powers must be regarded as hav ing the force of law." In this case it must be held that the order under ss. 8 and 9 published tinder s. IO (!) of the Delimitation Commission Act were to make a complete set of rules which would govern the re-ad justment of number of seats and the delimitation of constituencies. In this case the powers given by the Delimitation Commission Act and the work of the Commission would be wholly nugatory unless the Commission as a result of its deliberations and public sittings were in a position to re-adjust the number of seats in the House of the People or the total number of seats to be assigned to the Legislative Assembly with reservation for the Scheduled Castes and Scheduled Tribes and the delimitation of constituencies. It was the will of Parliament that the Commission could by order publish its proposals which were to be given effect to in the subse quent election and as such its order as published in the notifica tion of the Gazette of India or the Gazette of the State was to be treated as law on the subject. In the instant case the provision of s. 10 (4) of the Act puts. orders under ss. 8 and 9 as published under s. 10 (!) in the same street as a law made by Parliament itself which, as we have already said, could only be done under Art. 327, and consequently the objection that the notification was not to be treated as law cannot be given effect to. In the result the appeal fails and is dismissed with costs. R.K:P.S. Appeal dismissed_