iminal Appeal No 7 of 1953
Appeal by Special Leave from the Judgment and Order of the High Court of Judicature at Nagpur dated the 15th
September 1952 in Criminal Case No 45 of 1951 from the Order of the Court of the Magistrate 1st Class Hoshangabad in Criminal Case No 75 of 1949
HJ Umrigar Rameshwarnath and Rajinder Narain for the appellants
T L Shevde Advocate General of Madhya Pradesh T P Naik and I N Shroff with him for the respondent
May 14
The Judgment of the Court was delivered by MEHAR CHAND MAHAJAN CJ
The facts giving rise to this appeal are these The appellant Harishankar Bagla and his wife Smt
Gomti Bagla were arrested at Itarsi by the Railway Police on the 29th November 1948 for contravention of section 7 of the Essential Supplies Temporary Powers Act 1946 read with clause 3 of the Cotton Textiles Control of Movement 383 Order
 1948 having been found in possession of new cotton cloth  weighing over six maunds which cloth it was allegedwas being taken by them from Bombay to Kanpur without any permit
After various vicissitudes through which the chalan passed the case was eventually withdrawn by the High Court to itself on the 3rd of September 1951 as it involved a decision of constitutional issues
By its order dated the 15th September 1952 the High Court upheld the provisions of sections 3 and 4 of the Essential Supplies Temporary Powers Act 1946 as constitutional
It also upheld the constitutionality of the impugned Order
Section 6 of the Act was held to be inconsistent with the provisions of the Railway Act but it was held that its unconstitutionality did not affect the prosecution in this case
The High Court directed that the prosecution should proceed and the records sent back to the trial Court for being dealt with in accordance with law
Leave to appeal was given both to the appellants and the respondent and requisite certificates under articles 132 and 134 of the Constitution were granted
This appeal along with the connected appeal No 6 of 1953 is before us on the basis of the said certificates
Mr Umrigar who appeared in this and the connected appeal urged the following points for our consideration and decision 1 That sections 3 and 4 of the Essential Supplies Temporary Powers Act 1946 and the provisions of the Cotton Cloth Control Order contravened the fundamental right of the appellants guaranteed by article 191f and g of the Constitution 2 That section 3 of the Essential Supplies Temporary Powers Act 1946 and in particular section 4 were ultra vires the Legislature on the ground of excessive delegation of legislative power 3 That section 6 having been found ultra vires section 3 was inextricably connected with it and that both the sections should have been declared ultra vires on that ground and 4 That the impugned Control Order contravened existing laws viz the provisions of section 2728 and 384 41 of the Indian Railways Act and was thus void in its entirety
The respondent challenged the judgment of the High Court that section 6 of the Act was unconstitutional
In our judgment none of the points raised by Mr Umrigar have any validity
On the other hand we are of the opinion that the High Court was in error in declaring section 6 of the Act unconstitutional
Sections 3 and 4 of the Essential Supplies Temporary Powers Act 1946 provide as follows 3
1 The Central Government so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity or for socuring their equitable distribution and availability at fair prices may by order provide for regulating or prohibiting the production supply and distribution thereof and trade and commerce therein 2 Without prejudice to the generality of the powers conferred by sub section 1 an order made thereunder may provide a for regulating by licences permits or otherwise the production or manufacture of any essential com modity  d for regulating by licences permits or otherwise the storage transport distribution disposal acquisition use or consumption of any essential commodity 4
The Central Government may by notified order direct that the power to make orders under section 3 shallin relation to such matters and subject to such conditions if any as may be specified in the direction be exercisable also by a such officer or authority subordinate to the Central Government or b such State Government or such officer or authority subordinate to a State Government as may be specified in the direction
 Section 6 runs thus 6
Any order made under section 3 shall have effect notwithstanding anything inconsistent therewith 385 contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act Under powers conferred by section 3 the Central Government promulgated on 10th September 1948 Cotton Textiles Control of Movement Order 1948
Section 2 of this order defines the expressions apparel  carrier  hosiery  cloth  and  textile commissioner
 Section 3 of the order runs as follows 3
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 i a general permit notified in the Gazette of India by the Textile Commissioner or ii a special transport permit issued by the Textile Commissioner
 Section 8 provides that the Textile Commissioner may by notification in the Gazette of India prescribe the manner in which any application for a special transport permit under this Order shall be made
The Central Government has prescribed forms for application for obtaining permits and the conditions under which permits can be obtained
The first question canvassed by Mr Umrigar was that the provisions of section 3 of the Control Order infringed the rights of a citizen guaranteed in subclauses f and g of article 191 of the Constitution
These sub clauses recognise the right of a citizen to dispose of property and to carry on trade or business
The requirement of a permit to transport by rail cotton textiles to a certain extent operates as a restriction on the rights of a person who is engaged in the business of purchase and sale of cotton textiles
Clause 5 of article 19 however permits such restrictions to be placed provided they are in the public interest
During the period of emergency it was necessary to impose control on the production supply and distribution of commodities essential to the life of the community
It was for this reason that the Legislature passed the Essential Supplies Temporary Powers Act 50 386 authorising the Central Government to make orders from time to time controlling the production supply and distribution of essential commodities
Clause 3 of the Control Order does not deprive a citizen of the right to dispose of or transport cotton textiles purchased by him
It requires him to take a permit from the Textile Commissioner to enable him to transport them
The requirement of a permit in this regard cannot be regarded as an unreasonable restriction on the citizen s right under sub clauses f and g of article 191
If transport of essential commodities by rail or other means of conveyance was left uncontrolled it might well have seriously hampered the supply of these commodities to the public
Act XXIV of 1946 was an emergency measure and as stated in its preamble was intended to provide for the continuance during a limited period of powers to control the production supply and distribution of and trade and commerce in certain commodities
The number of commodities held essential are mentioned in section 2 of the Act and the requirement of a permit to transport such commodities by road or rail or other means of transport cannot in any sense of the term be said in a temporary Act to be unreasonable restriction on the citizen s rights mentioned in clauses f and g of article 191
The High Court was therefore right in negativing the contention raised regarding the invalidity of the Control Order as abridging the rights of the citizen under article 191 of the Constitution
Mr Umrigar further argued that the Textile Commissioner had been given unregulated and arbitrary discretion to refuse or to grant a permit and that on grounds similar to those on which in Dwarka Prasad vs The State of Uttar Pradesh 1 this Court declared void section 43 of the Uttar Pradesh Coal Control Order section 3 of the Control Order in question should also be declared void
This argument again is not tenable
In the first place the appellants never applied for a permit and made no efforts to obtain one
If the permit had been applied for and refused arbitrarily they might then have had a right to attack the law on 1 ATR  387 the ground that it vested arbitrary and unregulated power in the textile commissioner
The appellants were not hurt in any way by any act of the textile commissioner as they never applied for a permit
They were transporting essential goods by rail without a permit and the only way they can get any relief is by attacking the section which obliges them to take a permit before they can transport by rail essential commodities
It may also be pointed out that reference to the decision of this Court in Dwarka Prasad s case1 is not very opposite and has no bearing on the present case
Section 43 of the Uttar Pradesh Coal Control Order was declared void on the ground that it committed to the unrestrained will of a single individual to grant withhold or cancel licences in any way he chose and there was nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same
Section 43 of the Uttar Pradesh Coal Control Order was in these terms  The Licensing Authority may grant refuse to grant renew or refuse to renew a licence and may suspend cancel revoke or modify any licence or any terms thereof granted by him under the Order for reasons to be recorded
Provided that every power which is under this Order exercisable by the Licensing Authority shall also be exercisable by the State Coal Controller or any person authorized by him in this behalf In the present Control Order there is no such provision as existed in the Uttar Pradesh Coal Control Order
Provisions of that Control Order bear no analogy to the provisions of the present Control Order
The policy underlying the Order is to regulate the transport of cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all
The grant or refusal of a permit is thus to be governed by this policy and the discretion given to the Textile Commis sioner is to be exercised in such a way as to effectuate this policy
The conferment of such a discretion i  AIR 1954 SC 225 388 cannot be called invalid and if there is an abuse of the power there is ample power in the Courts to undo the mischief Presumably as appears from the different forms published in the Manual there are directions and rules laid down by the Central Government for the grant or refusal of permits
The next contention of Mr Umrigar that section 3 of the Essential Supplies Temporary Powers Act 1946 amounts to delegation of Legislative power outside the permissible limits is again without any merit
It was settled by the majority judgment in the Delhi Laws Act case 1 that essential powers of legislation cannot be delegated
In other words the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct
The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law
The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct
In the present case the legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices
The principle is clear and offers sufficient guidance to the Central Government in exercising its powers under section 3
Delegation of the kind mentioned in section 3 was upheld before the Constitution in a number of decisions of their Lordships of the Privy Council vide Russell vs The Queen 2 Hodge vs The Queen 3 and Shannon vs Lower Mainland Dairy Products Board 4and since the coming into force of the Constitution delegation of this character has been upheld in a number of decisions of this Court on principles enunciated by the majority in the Delhi Laws Act case 1
As already
pointed out the preamble and the body of the sections sufficiently formulate the legislative policy and the ambit and character of I I  2 7 AC 829
3 9 AC II7
4 I938 AC 708
389 the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the framework of that policy
Mr Umrigar could not very seriously press the question of  the invalidity of section 3 of the Act and it is unnecessary therefore to consider this question in greater detail
Section 4 of the Act was attacked on the ground that it empowers the Central Government to delegate its own power to make orders under section 3 to any officer or authority subordinate to it or the Provincial Government or to any officer or authority subordinate to the Provincial Government as specified in the direction given by the Central Government
In other words the delegate has been authorized to further delegate its powers in respect of the exercise of the powers of section 3
Mr Umrigar contended that it was for the Legislature itself to specify the particular authorities or officers who could exercise power under section 3 and it was not open to the Legislature to empower the Central Government to say what officer or authority could exercise the power
Reference in this connection was made to two decisions of the Supreme Court of the United States of America Panama Refining Co vs Ryan 1 and Schechter vs United States 2
In both these cases it was held that so long as the policy is laid down and a standard established by a statute no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply
These decisions in our judgment do not help the contention of Mr Umrigar as we think that section 4 enumerates the classes of persons to whom the power could be delegated or sub delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself
The decision of their Lordships of the Privy Council in Shannon s case 3 completely negatives the contention raised regarding the invalidity of section 4
1  3 2  390 In that case the LtGovernor in Council was given power to vest in a marketing board the powers conferred by section 4Ad of the Natural Products Marketing British Columbia Act 1936
The attack on the Act was that without constitutional authority it delegated legislative power to the LtGovernor in Council
This contention was answered by their Lordships in these terms  The third objection is that it is not within the powers of the Provincial Legislature to delegate so called legislative powers to the Lt Governor in Council or to give him powers of further delegation This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the Constitution has granted legislative powers
Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament and it is unnecessary to try to enumerate the innumerable occasions on which Legislatures Provincial Dominion and Imperial have entrusted various persons and bodies with similar powers to those contained in this Act
 The next contention that the provisions of the Textile Control Order operate as an implied repeal of sections 27 28 and 41 of the Indian Railways Act and are therefore invalid is also not well founded
The requirement of a permit by clause 3 and provisions of clause 4 of the Order which empower the Textile Commissioner to direct a carrier to close the booking or transport of cloth apparel etc are not in direct conflict with sections 27 28 and 41 of the Railways Act
The Railways Act does not exclude the placing of a disability on a railway administration by the Government or any other authority
This clause merely supplements the relevant provisions of the Railways Act and does not supersede them
Similar observations apply to clause 5 which enables the Textile Commissioner to place an embargo on the transport of certain textiles from one area to another
There is nothing in the provisions of the order which in any way overrides or supersedes the provisions of the different sections of the Railways Act referred to above
391 The last contention of Mr Umrigar that section 6 having been declared invalid section 3 is inextricably mixed with it and should also have been declared invalid is also not valid because apart from the grounds given by the High Court for holding that the two sections were not so interconnected that the invalidity of one would make the other invalid the High Court was in error in holding that section 6 was unconstitutional
Section 6 of the Act cited above declare that an order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act
In other words it declares that if there is any repugnancy in an order made under section 3 with the provisions of any other enactment then notwithstanding that inconsistency the provisions of the Order will prevail in preference to the provisions of other laws which are thus inconsistent with the provisions of the Order
In the view of the High Court the power to do something which may have the effect of repealing by implication an existing law could not be delegated in view of the majority decision of this Court in In Re Delhi Laws Act 1 where it was held that to repeal or abrogate an existing law is the exercise of an essential legislative power
The learned Judges of the High Court thought that the conferment of power of the widest amplitude to make an order inconsistent with the pre existing laws is nothing short of a power to repeal
In our opinion the construction placed on section 6 by the High Court is not right
Section 6 does not either expressly or by implication repeal any of the provisions of pre existing laws neither does it abrogate them
Those laws remain untouched and unaffected so far as the statute book is concerned
The repeal of a statute means as if the repealed statute was never on the statute book
It is wiped out from the statute book
The effect of section 6 certainly is not to repeal any one of those laws or abrogate then
Its object is simply to by pass them where they are inconsistent with the provisions of the Essential Supplies Temporary Powers I 1951 SCR 747  or the orders made thereunder
In other words the orders made under section 3 would be operative in regard to the essential commodity covered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate
By passing a certain law does not necessarily amount to repeal or abrogation of that law
That law remains unrepealed but during the continuance of the order made under section 3 it does not operate in that field for the time being
The ambit of its operation is thus limited without there being any repeal of any one of its provisions
Conceding how ever for the sake of argument that to the extent of a repugnancy between an order made under section 3 and the provisions of an existing law to the extent of the repugnancy the existing law stands repealed by implication it seems to us that the repeal is not by any Act of the delegate but the repeal is by the legislative Act of the Parliament itself
By enacting section 6 Parliament itself has declared that an order made under section 3 shall have effect notwithstanding any 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 section 6
The abrogation or the implied repeal is by force of the legislative declaration contained in section 6 and is not by force of the order made by the delegate under section 3
The power of the delegate is only to make an order under section 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
Parliament being supreme it certainly could make a law abrogating or repealing by implication provisions of any pre existing law and no exception could be taken on the ground of excessive delegation to the Act of the Parliament itself
There is no delegation involved in the provisions of section 6 at all and that section could not be held to be unconstitutional on that ground 393 The result therefore is that in our opinion the provisions of sections 3 4 and 6 of the Essential Supplies Temporary Powers Act 1946 are constitutional and
the impugned order is also constitutional
Accordingly  this appeal is dismissed and the trial Court is directed to proceed expeditiously with the case in accordance with law
Appeal dismissed


Summary:
Clause 3 of the Cotton Textile Control of Movement Order 1948 promulgated by the Central Government under section 3 of the Essential Supplies Temporary Powers Act 1946 does not deprive a citizen of the right to dispose of or transport cotton tex B tiles purchased by him
It requires him to take a permit from the Textile Commissioner to enable him to transport them
The requirement of a permit in this respect cannot be regarded as an A unreasonable restriction on the citizen s right under sub clauses f and g of article 191 of the Constitution
The policy underlying the Control Order is to regulate the transport of cotton textiles in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all
The grant or a refusal of a permit is to be governed by the policy and the discretion given to the Textile Commissioner is to be exercised in such a way as to effectuate this policy
The conferment of such a discretion cannot be called invalid and if there is an abuse of power there is ample power in Courts to undo the mischief
Messrs Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh 1954 SCR 803 distinguished
It was settled by the majority judgment in the Delhi Laws Act case 1951 SCR 747 that the essential powers of legislation cannot be delegated
The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law
The Legislature has laid down such a principle in the Act and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at given prices
The preamble and the body of the sections in the Essential Supplies Temporary Powers Act 1946 sufficiently formulate the legislative policy and the ambit and the character of the Act is such that the details of that policy can only be worked out by delegating that power to a subordinate authority within the framework of that policy
Therefore section 3 of the Act is not ultra vires the Legislature on the ground of delegation of legislative power
Section 4 of the Act enumerates the classes of persons to whom the power could be delegated or sub delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself
Accordingly section 4 of the Act is not ultra vires on the ground of excessive delegation of legislative powers
Shannon vs Lower Maintand Dairy Products Board 1938 AC 708 applied
382 The requirements of a permit by clause 3 and the provisions of clause 4 of the Central Order which empower the Textile Commissioner to direct a carrier to close booking or transport of cloth apparel etc are not in conflict with sections 27 28 and 41 of the Railways Act
These clauses merely supplement the relevant provisions of the Railways Act and do not supersede them  Section 6 of the Act does not either expressly or by implication repeal any of the provisions of the preexisting laws  nor does it abrogate them
Those laws remain untouched and unaffected so far as the statute book is concerned
The repeal of a statute means that the repealed statute must be regarded as if it had never been on the statute book
The effect of section 6 is not to repeal those laws or abrogate them but simply to by pass them where they are inconsistent with the provisions of the Essential Supplies Temporary Powers Act 1946 or the orders made thereunder
Even assuming that the existing law stands repealed by implication such abrogation or repeal is by force of the legislative declaration contained in section 6 and is not by force of the order made by the delegate under section 3
Accordingly there is no delegation involved in the provision of section 6 and it cannot be held uncon stitutional on that ground