ICTION Criminal Appeal 24 of 1976
From the Judgment and Order dated 31 9 1974 of the Punjab and Haryana High Court in Criminal Writ No 32 of 1970
B Sen for appellant No 1 A K Sen for Appellant No 2 J C Bhatt for appellant No 3 F section Nariman for appellant No 4 A B Diwan for appellant No 4 IN Shroff and H section Parihar for the Appellants
D Mukherjee E C Agrawala and R N Sachthey for the Respondent
The Judgment of the Court was delivered by JASWANT SINGH J
During the course of on spot check carried out by him on December 29 1964 of BP sheets lying in appellant No 1 s factory at Sonepat the Development Officer LME 1 of the Directorate General of Technical Development New Delhi discovered from an examination of the said appellant s account books that it had during the period intervening between January 1 1964 and January 12 1965 acquired black plain iron sheets of prime quality weighing 1073 6003 metric tons from various parties at a rate higher than the maximum statutory price fixed for such sheets by the Iron and Steel Controller hereinafter referred to as the Controller  in exercise of the powers vested in him under clause 151 of the Iron and Steel Control Order 1956 hereinafter referred to as the Control Order
After the Special Magistrate had framed the charges and secured in the Court of the Special Magistrate Ambala Cantt for an offence under section 120 B of the Indian Penal Code read with section 7 of the Act No 10 of 1955 hereinafter referred to as the Act  as also for an offence under section 7 of the Act read with clause 15 3 of the Control Order
After the Special Magistrate had framed the charges and examined sixteen prosecution witnesses the appellants made an application before him on February 12 1970 under section 251A 11 and 288 1 of the Code of Criminal Procedure 1898 praying that in view of the submissions made therein the case against them be not proceeded with and they be acquitted
The trial Magistrate dismissed the application vide his order dated June 4 1970 relevant portion whereof is extracted below for facility of reference  In the light of the above observations I am prevented from determining the case otherwise than by making an order of acquittal or conviction which I can pass only after recording further evidence both of prosecution and in defence
Regarding various objections raised by the learned counsel for the accused on the points that the notifications were not placed before the Parliament and within a reasonable time and also on the points of formation of opinion and delegation of powers I may submit that the prosecution cannot be prevented from adducing evidence regarding the formation of opinion and laying of the notifications before the Parliament which can be proved by the contemporaneous record
Regarding the non prosecution of the sellers of the black iron sheets it does not lie in the mouth of the accused to say that such and such person has not been prosecuted
I need not to give my observations on merits on the points regarding subsequent exemption of control mens rea formation of opinion and delegation of powers in laying notifications before the Parliament and also need not discuss the citations as I will have to consider 1074 all these points at the time of final arguments and any order given now will not be proper
I dismiss the application of the accused on the short ground that it is not possible for this Court to hold that the cognizance was taken on an invalid report and the order of the Court ordering framing of charge is a nullity on the ground that on record no offence is committed and no cognizance could be taken
 Aggrieved by the aforesaid order of the Special Magistrate the appellants moved the High Court of Punjab and Harayana under Articles 226 and 227 of the Constitution and section 561 A of the Code of Criminal Procedure 1898 challenging their prosecution inter alia on the grounds that the Control Order and the notification which formed the basis of their prosecution did not have the force of law as they had not been laid before the Houses of Parliament within a reasonable time as required under section 36 of the Act that the Control Order and the Notification fixing the maximum selling price of the commodity in question for the contravention of which the appellants had been hauled up were invalid as the same did not appear to be preceded by the formation of the requisite opinion under section 31 of the Act which was a sine qua non for issue of any order by the Central Government or by the Controller that none of the 18 concerns which according to the prosecution sold the aforesaid BP sheets to the appellants and who were equally guilty of the offence under section 7 of the Act having been proceeded against in the Court of the competent jurisdiction the prosecution of the appellants was violative of Article 14 of the Constitution and that the purchases of the aforesaid BP sheets having been openly made and entered in the account books of appellant No 1 the mens rea which was a necessary ingredient of the offence under section 7 of the Act was totally lacking in the case
In the return filed by it in opposition to the writ petition the respondent while denying that the Control Order had not been placed before both Houses of Parliament as required by sub section 6 of section 3 of the Act or that the issue of the Control Order or the Notification fixing maximum selling prices of various categories of iron and steel including the commodity in question was not based on the formation of the opinion envisaged by sub section 1 of section 3 of the Act conceded that the notification fixing the maximum selling prices of the categories of iron and steel including the commodity in question had not been placed before both Houses of Parliament but contended that the provisions of sub section 6 of section 3 of the 1075 Act requiring the placing of the order contained in the aforesaid notification before both Houses of Parliament were directory and not mandatory and the omission to comply with that requirement did not have the effect of invalidating the notification
The respondent further contended that the notification fixing the maximum selling prices of various categories of iron and steel including the black plain iron sheets being a part of the Control Order and a piece of delegated legislation it was not necessary to lay it before the Houses of Parliament
It was also pleaded by the respondent that the mensrea of the accused was manifest from various manipulations resorted to by them as also from the fact that they wanted to increase their production and earn more profits
The respondent also averred that launching of prosecution against any person depended on the availability of sufficient evidence and that non prosecution of the sellers of the iron sheets in question did not involve any discrimination as envisaged by Article 14 of the Constitution but was due to non availability of adequate and reliable evidence against them
After careful consideration of the rival contentions of the parties the High Court by its elaborate judgment and order dated May 31 1974 dismissed the petition overruling the contentions of the appellants
One of the learned Judges of the High Court constituting the Bench which dealt with the writ petition also observed that the Notification in question had not in reality been issued under section 3 of the Act which required it to be laid before both Houses of Parliament but was issued in exercise of the power conferred by section 4 of the Act which plainly related to issue of incidental orders arising out of the nature of the powers conferred and duties imposed thereunder and the purpose whereof was to enable the various authorities mentioned therein to provide the details to fill up gaps in the Control Orders issued under section 3 of the Act so as to ensure the harmonious and rational working of the orders
The High Court however being of the opinion that the case involved a substantial question of law relating to the vires of the notification fixing the maximum selling prices of various categories of iron and steel including the commodity in question certified the case as eminently fit for appeal to this Court
This is how the case is before us
At the hearing of the appeal though the learned counsel for the appellants have reiterated all the contentions raised by them in the aforesaid writ petition the only substantial question of law with which we are concerned at the present stage is whether the aforesaid notification fixing the maximum selling price of the commodity in question is void for not having been laid before both Houses of Parliament
1076 For a proper determination of the aforesaid question it is necessary to notice a few provisions of the Act which are relevant for the purpose of the appeal
Section 2 is a glossary of the Act
According to clause avi of the said section iron and steel and manufactured products thereof fall within the ambit of the expression essential commodity
Sub section 1 of section 3 of the Act confers on the Central Government the general power of making and issuing orders providing for regulating or prohibiting the production supply and distribution of an essential commodity and trade and commerce therein if it is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing its equitable distribution and availability at fair prices or for securing any essential commodity for the defence of India or the efficient conduct of military operations
Sub section 2 of section 3 of the Act specifies the orders which without prejudice to the generality of the powers conferred by subsection 1 of section 3 can be issued thereunder
Clause c of sub section 2 of section 3 of the Act authorities the issue of an order for controlling the price at which any essential commodity may be bought or sold
Sub section 6 of section 3 of the Act ordains that every order made under this section by the Central or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be after it is made
Section 4 of the Act lays down that an order made under section 3 may confer powers and impose duties upon the Central Government or the State Government or officers and authorities of the Central Government or State Government and may contain directions to any State Government or to officers and authorities thereof as to the exercise of any such powers or the discharge of any such duties
Section 5 of the Act deals with delegation of powers
It provides that the Central Government may by notified order direct that the power to make orders or issue notifications under section 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 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 of the Act which embodies the non obstante clause lays down that any order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment 1077 other than this Act or any instrument having effect by virtue of any enactment other than this Act
Section 7 of the Act lays down the penalties which any person contravening any order made under section 3 shall entail
Section 10 of the Act which deals with offences by the companies provides as follows 10
1 If the person contravening an order made under section 3 is a company every person who at the time the contravention was committed was in charge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly  Provided that nothing contained in this sub section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention
2 Notwithstanding anything contained in sub section 1 where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director manager secretary or other officer of the company such director manager secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly
Explanation
For the purposes of this section a company means any body corporate and includes a firm or other association of individuals and b director in relation to a firm means a partner in the firm
 We may also at this stage advert to the Control Order which was issued by the Central Government vide SRO 1109ESS
COMM IRON AND STEEL dated May 8 1956 in exercise of the powers conferred on it by section 3 of the Act
Sub clause 1 of clause 15 of this Order authorities the Controller to fix by notification in the Gazette of India the maximum prices at which any iron and steel may 1078 be sold a by a producer b by a stockholder including a controlled stockholder and c by any person or class of persons
Sub clause 3 of clause 15 of the Control Order which is material for the purpose of the case provides 15
3 No producer or stockholder or other person shall sell or offer to sell and no person shall acquire any iron or steel at a price exceeding the maximum prices fixed under sub clause 1 or 2
 It was under sub clause 1 of clause 15 of the Control Order that the notification in question was issued
Though sub section 6 of section 3 of the Act provides that every order made by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be after it is made the important point to be considered in the absence of analogous statutes like the Statutory Instruments Act 1946 and the Laying of Documents before Parliament Interpretation Act 1948 prescribing the conditions the period and the legal effect of the laying of order before the Parliament is whether the provision is directory or mandatory
It is well to remember at the outset that the use of the word shall  is not conclusive and decisive of the matter and the Court has to ascertain the true intention of the legislature which is the determining factor and that must be done by looking carefully to the whole scope nature and design of the statute
Reference in this connection may be made to the decision of this Court in State of UP vs Manbodhan Lal Srivastava
Reference in this behalf may also be made with advantage to another decision of this Court in The State of Uttar Pradesh  Ors
vs Babu Ram Upadhya2 where Subba Rao J as he then was after quoting with approval the passage occurring at page 516 in Crawford On the Construction of Statutes as well as the passage occurring at page 242 in Craies on Statute Law  5th Edition observed as follows  The relevant rules of interpretation may be briefly stated thus When a statute uses the word shall prima facie it is mandatory but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute
For ascertaining the real intention of the Legislature the Court may consider inter alia the nature and the design of the statute and the consequences which would follow from constituting it one way or the other 1079 the impact of other provisions whereby the necessity of complying with the provisions in question is avoided the circumstances namely that the statute provides for a contingency of the non compliance with the provisions the fact that the non compliance with the provisions is or is not visited by some penalty the serious or trivial consequences that flow therefrom and above all whether the object of the legislation will be defeated or furthered Thus two considerations for regarding a provision as directory are  1 absence of any provision for the contingency of a particular provision not being complied with or followed and 2 serious general inconvenience and prejudice that would result to the general public if the act of the Government or an instrumentality is declared invalid for non compliance with the particular provision
Now the policy and object underlying the provisions relating to laying the delegated legislation made by the subordinate law making authorities or orders passed by subordinate executive instrumentalities before both Houses of Parliament being to keep supervision and control over the aforesaid authorities and instrumentalities the laying clauses assume different forms depending on the degree of control which the legislature may like to exercise
As evident from the observations made at pages 305 to 307 of the 7th Edition of Craies on Statute Law and noticed with approval in Hukam Chand etc
vs Union of India  Ors1 there are three kinds of laying which are generally used by the Legislature
These three kinds of laying are described and dealt with in Craies on Statute Law Supra as under i Laying without further procedure ii Laying subject to negative resolution iii Laying subject to affirmative resolution
i Simple laying
The most obvious example is in section 102 of the 1946 Act
In earlier days before the idea of laying in draft had been introduced there was a provision for laying rules etc for a period during which time they were not in operation and could be thrown out without ever having come into operation compare Merchant Shipping Act 1894 section 417 Inebriates Act 1898 section 21 but this is not used now
1080 ii Negative resolution
Instruments so laid have immediate operative effect but are subject to annulment within forty days without prejudice to a new instrument being made
The phraseology generally used is subject to annulment in pursuance of a resolution of either House of Parliament
 This is by far the commonest form of laying
It acts mostly as a deterrent and sometimes forces a Minister in Sir Cecil Carr s phrase to buy off opposition by proposing some modification
iii Affirmative resolution
The phraseology here is normally no order shall be made unless a draft has been laid before Parliament and has been approved by a resolution of each House of Parliament
Normally no time limit is fixed for obtaining approval none is necessary because the Government will naturally take the earliest opportunity of bringing it up for approval but section 163 of the Housing Financial and Miscellaneous Provisions Act 1946 did impose a limit of forty days
An old form not much used nowadays provided for an order to be made but not to become operative until a resolution of both Houses of Parliament had been obtained
This form was used in section 104 of the Road Traffic Act 1930 cf
Road Traffic Act 1960 s19 3 
The affirmative resolution procedure necessitates a debate in every case
This means that one object of delegation of legislation viz saving the time of Parliament is to some extent defeated
The procedure therefore is sparingly used and is more or less reserved to cases where the order almost amounts to an Act by effecting changes which approximate to true legislation eg where the order is the meat of the matter the enabling Act merely outlining the general purpose or where the order replaces local Acts or provisional orders and most important of all where the spending etc
of public money is affected
Sometimes where speedy or secret action is required eg the imposition of import duties the order is laid with immediate operation but has to be confirmed within a certain period of Import Duties Act 1958 1081 s134
This process of acting first and getting approval after has also been adopted in the Emergency Powers Act 1920 under which a state of emergency can be proclaimed and regulations made
The proclamation must be immediately communicated to Parliament and does not have effect for longer than a month but it can be replaced by another proclamation
Any regulations made under the proclamation are to be laid before Parliament immediately and do not continue in force after the expiration of seven days from the time when they are so laid unless a resolution is passed by both Houses providing for their continuance Now at page 317 of the aforesaid Edition of Craies on Statute Law the questions whether the direction to lay the rules before Parliament is mandatory or merely directory and whether laying is a condition precedent to their operation or may be neglected without prejudice to the effect of the rules are answered by saying that each case must depend on its own circumstances or the wording of the statute under which the rules are made
 In the instant case it would be noticed that sub section6 of section 3 of the Act merely provides that every order made under section 3 by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be after it is made
It does not provide that it shall be subject to the negative or the affirmative resolution by either House of Parliament
It also does not provide that it shall be open to the Parliament to approve or disapprove the order made under section 3 of the Act
It does not even say that it shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide
It does not even specify the period for which the order is to be laid before both Houses of Parliament nor does it provide any penalty for non observance of or non compliance with the direction as to the laying of the order before both Houses of Parliament
It would also be noticed that the requirement as to the laying of the order before both Houses of Parliament is not a condition precedent but subsequent to the making of the order
In other words there is no prohibition to the making of the orders without the approval of both Houses of Parliament
In these circumstances we are clearly of the view that the requirement as to laying contained in sub section 6 of section 3 of the Act falls within the first category ie simple laying and 1082 is directory not mandatory
We are fortified in this view by a catena of decisions both English and Indian
In Bailey vs Williamson1 whereby section 9 of the Parks Regulations Act 1872 passed on June 27 1872 to protect the royal parks from injury and to protect the public in the enjoyment of those royal parks and other royal possessions for the purpose of innocent recreation and exercise it was provided that any rules made in pursuance of the first schedule to the Act shall be forthwith laid before both Houses of Parliament if Parliament be sitting or if not then within three weeks after the beginning of the then next ensuing session of Parliament and if any such rules shall be disapproved by either House of Parliament within one month of the laying such rules or such parts thereof as shall be disapproved shall not be enforced and Rules for Hyde Park were made and published on September 30 1872 when Parliament was not sitting and in November 18 1872 the appellant was convicted under section 4 of the Act for that he did unlawfully act in contravention of Regulation 8 contained in the first schedule annexed thereto by delivering a public address not in accordance with the rules of the said Park but contrary to the statute and it was inter alia contended on his behalf that in the absence of distinct words in the statute stating that the rules would be operative in the interval from the time they were made to the time when Parliament should meet next or if Parliament was sitting then during the month during which Parliament had an opportunity of expressing its opinion upon them no rule made as supplementing the schedule could be operative so as to render a person liable to be convicted for infraction thereof unless the same had been laid before the Parliament it was held overruling the contention that the Rules became effective from the time they were made and it could not be the intention of the Legislature that the laying of the rules before Parliament should be made a condition precedent to their acquiring validity and that they should not take effect until they are laid before and approved by Parliament
If the Legislature had intended the same thing as in section 4 that the rules should not take effect until they had the sanction of the Parliament it would have expressly said so by employing negative language
In Starey vs Graham2 where it was contended that the Register of Patent Agents Rules 1889 which had been repealed by Rules of 1890 could not be re enacted by mere reference without complying with the provisions of section 101 sub section 4 of 46 and 47 Vict
c 57 according to which a copy of the Rules of 1889 should also have been 1083 laid before both Houses of Parliament in order to make them valid Channell J said  I somewhat doubt whether the provisions of section 101 are more than directory and whether it is necessary in any particular case where reliance is placed on such rules to prove that in fact its provisions had been complied with In Jan Mohammad Noor Mohammad Bagban vs The State of Gujarat  Anr1 where it was urged by the petitioner that the rules framed by the Provincial Government in 1941 in exercise of the powers conferred on it under section 261 of the Bombay Agricultural Produce Markets Act 22 of 1939 had no legal validity as they were not laid before each of the Houses of the Provincial Legislature at the session thereof next following as provided by sub section 5 of section 26 of the Act this Court rejected the contention and upheld the validity of the said rules
The following observations made in that case by Shah J as he then was on behalf of the Constitution Bench are apposite The rules under Act 22 of 1939 were framed by the Provincial Government of Bombay in 1941
At that time there was no Legislature in session the Legislature having been suspended during the emergency arising out of World War II
The session of the Bombay Legislative Assembly was convened for the first time after 1941 on May 20 1946 and that session was prorogued on May 24 1946
The second session of the Bombay Legislative Assembly was convened on July 15 1946 and that of the Bombay Legislative Council on September 3 1946 and the rules were placed on the Assembly Table in the second session before the Legislative Assembly on September 1 1946 and before the Legislative Council on September 13 1946
Section 265 of Bombay Act 22 of 1939 does not prescribe that the rules acquired validity only from the date on which they were placed before the Houses of Legislature
The rules are valid from the date on which they are made under section 261
It is true that the Legislature has prescribed that the rules shall be placed before the Houses of Legislature but failure to place the rules before Houses of Legislature does affect the validity of the rules merely because they have not been placed before the Houses of the Legislature
Granting that the provisions of sub section
5 of section 26 by reason of the failure to place the rules before the Houses of Legislature were 1084 violated we are of the view that Sub section
5 of section 26 having regard to the purposes for which it is made and in the context in which it occurs cannot be regarded as mandatory
Emphasis supplied
The rules have been in operation since the year 1941 and by virtue of section 64 of the Gujarat Act 20 of 1964 they continue to remain in operation
In D K Krishnan vs Secretary Regional Transport Authority Chittor1 where the validity of Rule 13 A of the Madras Motor Vehicles Rules 1940 made under the empowering the Regional Transport Authority to delegate its functions to the Secretary was challenged on the ground that it was not laid before the Legislature of the Madras State as required by section 1333 of the Act which provided that the rules shall be laid for not less than fourteen days before the Legislature as soon as possible after they are made and shall be subject to such modification as Parliament or such Legislature may make during the session in which they are so laid Sabba Rao J as he then was after an exhaustive review of the case law and the text books on constitutional law by eminent jurists repelled the contention observing as follows  The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or legislature to control delegated legislation
That control is sought to be effected by directing the rules or regulations made by the delegated authority to be laid before the Parliament
Where the statute makes the laying of the rules before Parliament a condition precedent or the resolution of the Parliament a condition subsequent there is no difficulty as in the former case the rule has no legal force at all till the condition precedent is complied with and in the latter case it ceases to have force from the date of non compliance with the condition subsequent
Nor can there be any difficulty in a case where the Parliament or the Legislature as the case may be specifically prescribes the legal effect of non compliance with that condition
But more important question arises when the Parliament directs the laying of the rules before the Parliament without providing for the consequences of non compliance with the rule
1085 In the case of a statute directing rules to be laid before the Parliament or the Legislature without any condition attached the rule is only directory
Though the statute says that the rules shall be laid before the Parliament as the provision in the statute is conceived in public interests the dereliction of the duty by the Minister or other officer concerned in not following the procedure should not be made to affect the members of the public governed by the rules
It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rules shall be laid before the Parliament and if that rule is construed as directory the object itself would be defeated
But the Parliament or the Legislature as the case may be if they intended to make that rule mandatory they would have clearly mentioned the legal consequences of its non compliance as they have done in other cases
This rule ie the one contained in Section 1333 therefore is not made either a condition precedent or a condition subsequent to the coming into force of the rules
It does not provide for any affirmative resolution
The role continues to be in force till it is modified by the Parliament
If sub section 3 is only directory in view of the opinion expressed by us it is clear from a fair reading of the words used in the section that the rules made under the section came into effect immediately they were published and they continued to be in force because it is not suggested that they were modified by the Legislature
We therefore hold that the rule in question is valid
 In State vs Karna1 where the very question with which we are concerned in the present case cropped up in connection with the Rajasthan Foodgrains Restrictions on Border Movement Order 1959 a bench of Rajasthan High Court said as follows It is important to note that laying the Order before both the Houses of Parliament is not a condition precedent for bringing into force the Order
All that sub section 6 provides is that every Order made under sec
3 of the by the Central Government or by any officer or authority of the Central Government shall be laid before both the Houses of Parliament as soon as after it is made
It is significant that 1086 the Order is valid and effective from the date it is duly promulgated
Even the limit or period within which it must be placed before the Parliament has not been specified
It is therefore not possible to hold that sub sec
6 of sec
3 of the is mandatory
If the legislature intended that in order to provide an adequate safeguard it was necessary to make the said provision mandatory it could have done so in express words
We are therefore of the opinion that the order cannot be considered as invalid merely because the State was not able to put on record proof of the fact that the Order was laid before both the Houses of Parliament In Mathura Prasad Yadava vs Inspector General Rly
Protection Force Railway Board New Delhi  Ors1 where it was contended that Regulation 14 of the Railway Protection Force Regulations 1966 made under section 21 of the Railway Protection Force Act 23 of 1957 was invalid as it was not laid before both Houses of Parliament as required by sub section 3 of section 21 of the Act it was held What then is the consequence of failure to lay the regulation 
A correct construction of any particular laying clause depends upon its own terms
If a laying clause defers the coming into force of the rules until they are laid the rules do not come into force before laying and the requirement of laying is obligatory to make the rule operative
So the requirement of laying in a laying clause which requires an affirmative procedure will be held to be mandatory for making the rules operative because in such cases the rules do not come into force until they are approved whether with or without modification by Parliament
But in case of a laying clause which requires a negative procedure the coming into force of the rules is not deferred and the rules come into force immediately they are made
The effect of a laying clause of this variety is that the rules continue subject to any modification that Parliament may choose to make when they are laid but the rules remain operative until they are so modified
Laying clauses requiring a negative procedure are therefore construed as directory
The matter is put beyond controversy by the decision of the Supreme Court in Jan Mohd vs State of Gujarat supra
Our conclusion therefore is that the laying requirement enacted in section 213 of the Act is merely directory
It logically follows that failure to lay Regulation 1087 14 has no effect on its validity and it continues to be effective and operative from the date it was made Relying on the decision in D K Krishnan vs Secretary Regional Transport Authority Chittoor supra Grover J speaking for the bench in Krishna Khanna  Anr
vs State of Punjab1 said that sub section 6 of section 3 of the was merely of a directory nature and its non compliance did not render the Punjab Coal Control Order 1955 invalid or void
Metcalfe  Ors
vs Cox  Ors
2 where the Commissioners charged with the duty of making provisions for improving the administration of the Scotish Universities assuming to act under powers of section 16 of the Universities Scotland Act 1889 executed an instrument in writing declaring that they had affiliated and did thereby affiliate the University College of Dundee to and make it form part of the University of St Andrews which was treated as an ordinance and held to be invalid on the ground that it had not been laid before Parliament is not helpful to the appellants as the decision in that case turned upon the construction of the language of section 20 of the said Act which provided that all ordinances made by the Commissioners are to be published in the Edinburgh Gazette laid before Parliament and submitted to Her Majesty the Queen for approval and no such ordinance shall be effectual until it shall have been so published laid before Parliament and approved by Her Majesty in Council
The decision of this Court in Narendra Kumar  Ors
vs The Union of India  Ors3 on which counsel for the appellants have heavily leaned is clearly distinguishable
In that case the Non ferrous Metal Control Order 1958 was held to be invalid essentially on the ground that the principles specified by the Central Government in accordance with clause 4 of the Order were not published either on April 2 1958 on which the order was published in the Government Gazette or any other date
It would be noticed that while considering the effect of non publication of the aforesaid principles which formed an integral part of the order by which alone the Central Government could regulate the distribution and supply of the essential commodities it was only incidentally that a mention was made by the Court to the effect that the principles had not been laid before both Houses of Parliament
Likewise the decisions of this Court in Express Newspapers Private Ltd  Anr
vs The Union of India  Ors4 and in re The 1088 Kerala Education Bill AIR 1958 SC 956 are also not helpful to the appellants
The point involved in the present case was not directly in issue in those cases and the observations made therein about laying were merely incidental
From the foregoing discussion it inevitably follows that the Legislature never intended that non compliance with the requirement of laying as envisaged by sub section 6 of section 3 of the Act should render the order void
Consequently non laying of the aforesaid notification fixing the maximum selling prices of various categories of iron and steel including the commodity in question before both Houses of Parliament cannot result in nullification of the notification
Accordingly we answer the aforesaid question in the negative
In view of this answer it is not necessary to deal with the other contention raised by the respondent to the effect that the aforesaid notification being of a subsidiary character it was not necessary to lay it before both Houses of Parliament to make it valid
In the result the appeal fails and is dismissed
NVK Appeal dismissed


Summary:
The appellants were prosecuted for the offence of acquiring a controlled commodity at a rate higher than the maximum statutory price fixed for such commodity by the Iron Control Order 1956
In the course of proceedings before the trial court the appellants made an application us 251A  288 Cr
PC raising various objections to their prosecution including that the notification fixing maximum selling prices of various categories of Iron  Steel including the commodity in question was not placed before the Parliament and as such was not valid
Observing that the laying of the notification before the Parliament could be proved by contemporaneous record and that it was not possible to hold that cognizance of the offence was taken on an invalid report and the order framing the charge was a nullity the trial Court dismissed the application
In its writ petition filed under articles 226 and 227 of the Constitution the appellants challenged their prosecution on the ground that the control order and the notification did not have the force of law as they had not been laid before the Houses of Parliament within a reasonable time as required by the 
The High Court dismissed the writ petition
On the question whether the notification fixing the maximum selling price of the commodity was void for not having been laid before both Houses of Parliament
Dismissing the appeal the Court  HELD 1
Non laying of the notification fixing the maximum selling prices of various categories of iron and steel including the commodity in question before both Houses of Parliament cannot result in nullification of the notification
The legislature never intended that non compliance with the requirement of laying as envisaged by section 36 of the Act should render the order void
Though section 36 of the Act provides that every order made by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be after it is made the important point to be considered in the absence of a provision prescribing the conditions the period and the legal effect of the laying of the order before the Parliament is whether the provision is directory or mandatory
The use of the word shall  is not conclusive and decisive of the matter and the Court has to ascertain the true intention of the legislature which is the determining factor and that must be done by looking carefully to the whole scope nature and design of the statute
1078 C E State of UP vs Manbodhan Lal Srivastava   The State of Uttar Pradesh and Ors
vs Babu Ram Upadhya  referred to
Craies Statute Law 5th Edn
p 242
Two considerations for regarding a provision as directory are 1 absence of any provision for the contingency of a particular provision not been complied with or followed and 2 serious general inconvenience and prejudice that would result to the general public if the act of the government or an instrumentality is declared invalid for non compliance with the particular provision1079 C 4
The policy and object underlying the provisions relating to laying the delegated legislation made by the subordinate law making authorities or orders passed by subordinate executive instrumentalities before both Houses of Parliament being to keep supervision and control over the aforesaid authorities and instrumentalities the laying clauses assume different forms depending on the degree of control which the Legislature may like to exercise
The three kinds of laying which are generally used by the Legislature are i laying without further procedure ii laying subject to negative resolution iii laying subject to affirmative resolution
Each case must depend on its own circumstances or the wording of the statute under which the rules are made
1079 D E 1081 D Hukam Chand etc
vs Union of India and Ors
referred to
Craies Statute Law 7th Edn
305 307
In the instant case section 36 of the Act merely provides that every order made under section 3 by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be after it is made
It does not provide that it shall be subject to the negative or the affirmative resolution by either House of Parliament
It also does not provide that it shall be open to the Parliament to approve or disapprove the order made under section 3 of the Act
It does not even say that it shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide
It does not even specify the period for which the order is to be laid before both Houses of Parliament nor does it provide any penalty for non observance of or non compliance with the direction as to the laying of 1072 the order before both Houses of Parliament
The requirement as to the laying of the order before both Houses of Parliament is not a condition precedent but subsequent to the making of the order
In other words there is no prohibition to the making of the orders without the approval of both Houses of Parliament
Therefore the requirement as to laying contained in section 36 of the Act falls within the first category ie simple laying and is directory and not mandatory
1081 E 1082 A Jan Mohammed Noor Mohammed Bagban vs The State of Gujarat and Anr   relied on
D K Krishnan vs Secretary Regional Transport Authority Chittor AIR 1956 AP
129 State vs Karna Mathura Prasad Yadava vs Inspector General Railway Protection Force Railway Board New Delhi and Ors  Krishna Khanna and Anr
vs State of Punjab AIR 1958 Punjab 32 approved
Narendra Kumar and Ors
vs The Union of India and Ors   distinguished
Express Newspapers P Ltd and Anr
vs The Union of India and Ors  In re
Kerala Education Bill  not applicable
Bailey vs Williamson 1873 LR VIII QB 118 Storey vs Graham referred to