Ramkhelawan Poddar v. King — 1949 DIGILAW 44 (PAT)

Judgment Ramaswami, J. 1. It is essential at the outset to relate the material facts giving rise to this rule. 2. On 14-11-1946, Provincial Government issued a notification Under Sec. 6 (1), Bihar Maintenance of Public Order Ordinance, 1946. By this notification, Government banned all processions, meetings, or assemblies except with the permission of the District Magistrate. The Ordinance was repealed on 15-3-1947, but the notifications issued under it were kept in force by Section l9, Bihar Maintenance of Public Order Act, 1947. The applicants were prosecuted before a Magistrate on the allegation that on 11-12-1948 they had assembled in uniforms to hold R. S. S. parade in the compound of the hospital at Teghra. On 29-12-1948 the learned Magistrate convicted the applicants Under Sec. 6 (4) of the Act and sentenced them to suffer rigorous imprisonment for three months each and to pay a fine of Rs. 500 each. On 5-2-1949 the learned Sessions Judge upheld the conviction but reduced sentence of imprisonment to the period already undergone and the amount of fine to Rs. 300 each. 3. The first argument in Support of the rule is that the notification issued by the Provincial Government is beyond the scope of the powers conferred Under Section 6, Bihar Maintenance of Public Order Ordinance. Learned Advocate referred to the unreported decision, Ramkhelawan Singh V/s. The King (Cr. App. No. 270 of 1948 decided on 8-12-1948) in support of his argument. 4. Sec. 6 of the Ordinance provides : "6. (1) The Provincial Government may, for the purpose of securing the public safety or the maintenance of public order, by general or special order, prohibit, restrict or impose conditions upon, the holding or of taking part in public processions, meetings or assemblies. (2) For the purposes of Sub-Section (1) any procession, meeting or assembly, which is open to the public or any class or portion of the public, whether held in a public or a private place and whether admission thereto is restricted by the issue of tickets or otherwise, shall be deemed to be a public procession, meeting or assembly as the case may be. (3) Any police officer may take such steps, and use such force, as may be reasonably necessary for securing compliance with any order made under this Section (4) If any person contravenes any order made under this section he shall be punishable with imprisonment for a term which may extend to one year or with fine or with both." 5. The section enables the Provincial Government to prohibit public meetings and in Sub-Section (2) enacts that a public meeting would be deemed to include a meeting which is open to any class or portion of the public whether held in a public or private place and whether admission thereto is restricted by the issue of tickets or otherwise. But the statute does not confer upon the Provincial Government the power to prohibit other meetings, for instance, meetings to which the public or any class of them are not admitted. The Government notification dated 14-11-1946, reads as follows : "In exercise of the powers conferred by Sub-Section (1) of Sec. 6, Bihar Maintenance of Public Order Ordinance, 1946 (Bihar Ordinance IV [4] of 1946), the Governor of Bihar, in view of the communal situation in the province, is pleased to direct that no meeting or procession shall be held without the sanction of the District Magistrate or Additional District Magistrate, as the case may be." 6. Since this notification prohibits any meeting or procession without the sanction of the District Magistrate or Additional District Magistrate, it is manifest the Provincial Government have acted in excess of the authority conferred upon them Under Sec. 6 (1) of the Ordinance. In my opinion, the notification is ultra vires and the petitioners committed no offence by violating it. 7. It is axiomatic that an executive order made subordinately by the Government by virtue of the authority of a statute is subject to the judicial test whether the order falls within the periphery of the power thus conferred. If it does not, it is utterly void and of no effect. The high constitutional importance of this function is well expressed by Lord Shaw in Rex V/s. Halliday, (1917) A. C. 260 at p. 287 : (86 L. J. K. B. 1119): "The author of the power is parliament; the weilder of it is the Government. If it does not, it is utterly void and of no effect. The high constitutional importance of this function is well expressed by Lord Shaw in Rex V/s. Halliday, (1917) A. C. 260 at p. 287 : (86 L. J. K. B. 1119): "The author of the power is parliament; the weilder of it is the Government. Whether the Government has exceeded its statutory mandate is a question of ultra or intra vires such as that which is now being tried. In so far as the mandate has been exceeded, there lurk the elements of a transition to arbitrary Government and therein of grave constitutional and public danger, The increasing crush of legislative efforts and the convenience to the Executive of a refuge to the device of Orders in Council would increase that danger tenfold were the judiciary to approach any such action of the Government in a spirit of compliance rather than of independent scrutiny." 8. In King V/s. Minister of Health; Ex parte Davis, (1929) 1 K. B. 619 : (98 L. J. K. B. 636), an improvement scheme purporting to be made under the provisions of the Housing Act, 1925, after providing for the acquisition and clearing of an unhealthy area, proceeded to empower the local authority to sell, or otherwise dispose of as they thought fit, the cleared area or to appropriate it for any purpose approved by the Minister of Health. The scheme further provided that if the Minister so required the local authority should provide a number of dwellings, not exceeding 72, suitable for accommodation of persons of the working classes, on a site either within or without the area. The scheme had been presented to the Minister with a petition for its confirmation. The Court of appeal held that a rule nisi for a writ of prohibition prohibiting the Minister from proceeding further in the matter of the scheme must be made absolute on the ground that the Act did not authorise an improvement scheme containing an unrestricted power to sell or lease the cleared area, so that the Minister had no jurisdiction to consider the scheme. At p. 625, Lord Hewart states : "There is indeed a precise and limited power conferred on the local authority to sell or let all or any part of the area comprised in the scheme. But it is a power guarded by special conditions and limitations. At p. 625, Lord Hewart states : "There is indeed a precise and limited power conferred on the local authority to sell or let all or any part of the area comprised in the scheme. But it is a power guarded by special conditions and limitations. The selling or the letting is to be for the purpose of enabling the purchasers or the lessees to carry the scheme into execution and not otherwise. In other words in the Act there is a limited power to sell or to let while the purpose of the scheme before us is to confer on the local authority a poper to sell, or to let freed from those or any limitations." 9. The conviction in the present case must also be quashed upon the ground that the extension of the Bihar Maintenance of Public Order Act, 1947, has been declared invalid by a judgment of the Federal Court. 10. Sec.1 (3) of the Act enacted that it shall remain in force for a period of one year from the date of its commencement. The proviso contained a power to extend the operation of the Act for a further period of one year by the resolution of the two Houses of Legislature of the Province, and further gave the Provincial Government the power of modification, if any, of the Act. The Federal Court decided by their judgment dated 28-5-1949, (reported in Jatindra Nath V/s. Province of Bihar, A. I. R. (36) 1949 F. C. 175: 50 Cr. L. J. 897) that the proviso was ultra vires of the Provincial Legislature, and the extension of the Act beyond one year was invalid. The Federal Court also held that Bihar Act v [5] of 1949 was in fructuous as the Bihar Maintenance of Public Order Act of 1947, which it sought to amend, had come to an end when the first year expired. On 3-0-1949 the Governor of Bihar promulgated ordinance II [2] of 1949. On 21-6-1949, this ordinance was declared ultra vires and invalid by a judgment of this Court. On the next date, that is, on 22-6-1949, the Governor of Bihar promulgated ordinance IV [4] of-- 1949 which reenacted, in substance, the provisions of ordinance II [2] of 1949, which it purported to repeal. Mr. K. P. Varma referred to Sec.23 and 24 of this Ordinance. On the next date, that is, on 22-6-1949, the Governor of Bihar promulgated ordinance IV [4] of-- 1949 which reenacted, in substance, the provisions of ordinance II [2] of 1949, which it purported to repeal. Mr. K. P. Varma referred to Sec.23 and 24 of this Ordinance. Sec.23 states : "The Bihar Maintenance of Public Order Act, 1947 as extended for one year by a notification issued by the Provincial Government on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council and as amended by the Bihar Maintenance of Public Order (Amendment) Act 1948 and the Bihar Maintenance of Public Order (Amendment) Act, 1949, hereinafter referred to ass the said Act), and the Bihar Maintenance of Public Order Ordinance, 1949 (hereinafter referred to as the said Ordinance) are hereby repealed." Sec.24 is to the following effect : "All proceedings commenced, officers appointed or authorised, rules and orders made, sentences passed or acts ordered or done whether in exercise of any jurisdiction or power conferred or purporting to have been conferred by or under the provisions of the said Ordinance shall be continued and be deemed to have been respectively commenced, appointed or authorised, made, passed, ordered or done under this Ordinance and any enactment or document referring to any of the said provisions shall be construed to refer to this Ordinance or to the corresponding provision thereof." 11. But it is manifest that Sec.24 does not save orders made or sentences passed under the Bihar Maintenance of Public Order Act, 1947, or the Amendment Acts xxix. [29] of 1948 and v [5] of 1949. Sec.24 only refers to orders made or sentences passed under the provisions of ordinance II [2] of 1949. 12. It must, therefore, be held upon the authority of the decision of the Federal Court that the conviction in the present case is illegal. 13. Upon these grounds I should make the rule absolute and set aside the sentences imposed on the applicants. Manohar Lall, J. 14 I agree. The extension of the Bihar Maintenance of Public Order Act, 1947, has been declared ultra vires by their Lordships of the Federal Court. To get over this difficulty, Mr. 13. Upon these grounds I should make the rule absolute and set aside the sentences imposed on the applicants. Manohar Lall, J. 14 I agree. The extension of the Bihar Maintenance of Public Order Act, 1947, has been declared ultra vires by their Lordships of the Federal Court. To get over this difficulty, Mr. K. P. Varma relied upon Sec.23 and 24 of ordinance Iv [4] of 1949 which was promulgated on 21-6-1949, and which re-enacted, in substance, the provisions of ordinance II [2] of 1949 which it purported to repeal. Sec.23 is irrelevant for consideration in the present case. Section 24 does not refer to orders made or sentences passed under the Bihar Maintenance of Public Order Act, 1947, or the Amending Acts xxix [29] of 1948, and v [5] of 1949. It only refers to orders made or sentences passed under the provisions of Ordinance II [2] of 1949--the present sentences were not passed under the provisions of these ordinances. I am, therefore, of the opinion that the conviction in the present case must be set aside.