1947 (4) TMI 18 - Other - Indian Laws

Summary

Issues Involved:
1. Validity of the Distribution Order.
2. Jurisdiction and existence of the Second Lahore Tribunal.
3. Continuation of proceedings after the expiry of the Defence of India Act, 1939.
4. Applicability of saving provisions under Section 102(4) of the Constitution Act.
5. Validity of orders made by the Central Government and Governor-General in Council.
6. Interpretation of Section 40(1) of the Constitution Act.

Issue-wise Detailed Analysis:

1. Validity of the Distribution Order:
The appellants challenged the Distribution Order on the grounds that it was not validly made. They argued that the Distribution Order, notified in the official Gazette on 26th July 1941, was purportedly made under Rule 81(2) of the Defence of India Rules, which authorized "the Central Government" to provide for certain matters, including the control of iron and steel. The appellants contended that at the time the Order was made, the words "or the Provincial Government" had not been introduced into Rule 81(2). They argued that the Distribution Order did not comply with Section 40(1) of the Constitution Act, which mandates that all orders by the Governor-General in Council should be expressed to be so made and signed by the proper person.

The court found that the Distribution Order was made by the Central Government, which, by virtue of the General Clauses Act and the Defence of India Act, 1939, should be construed as the Governor-General in Council. The court held that the Order was valid as it met the requirement of being signed by a Secretary to the Government of India, and that the term "Central Government" in the Order was equivalent to "Governor-General in Council."

2. Jurisdiction and Existence of the Second Lahore Tribunal:
The appellants argued that the Second Lahore Tribunal ceased to exist after the repeal of Ordinance LII of 1944 by Ordinance I of 1946. The court rejected this argument, stating that the saving provisions in Clause 3 of Ordinance I of 1946 and Section 6A of the General Clauses Act ensured the continued existence of the Tribunal.

The court further explained that the Tribunal was constituted and given jurisdiction by various ordinances and notifications, and its jurisdiction was reaffirmed by the Bombay Legislature Act XXI of 1946, which continued its existence and jurisdiction as a Provincial Tribunal after 30th September 1946.

3. Continuation of Proceedings after the Expiry of the Defence of India Act, 1939:
The appellants contended that the Defence of India Act, 1939, and all rules and orders made thereunder expired on 30th September 1946, and thus, the proceedings against them could not continue. The court referred to Ordinance XII of 1946, which amended Section 1(4) of the Defence of India Act to include saving provisions that allowed for the continuation of investigations, legal proceedings, and penalties even after the expiry of the Act.

The court also considered the interpretation of similar provisions under English law in the case of Wicks v. Director of Public Prosecutions, concluding that the saving provisions allowed for the continuation of prosecutions for offences committed before the expiry of the Act.

4. Applicability of Saving Provisions under Section 102(4) of the Constitution Act:
The court examined whether the saving provisions in Section 102(4) of the Constitution Act, as amended by Section 5 of the India (Central Government and Legislature) Act, 1946, allowed for the continuation of prosecutions. The court held that the words "except as respects things done or omitted to be done" in Section 102(4) authorized the continuation of prosecutions for offences committed before the expiry of the relevant legislation.

The court found that the saving provisions were sufficient to authorize the continuation of proceedings against the appellants even after the expiry of the Defence of India Act.

5. Validity of Orders Made by the Central Government and Governor-General in Council:
The appellants argued that the Distribution Order and other relevant orders were invalid as they were not expressed to be made by the Governor-General in Council. The court held that the term "Central Government" in the orders was equivalent to the Governor-General in Council, as per the General Clauses Act and the Defence of India Act.

The court concluded that the orders were validly made and complied with the requirements of Section 40(1) of the Constitution Act.

6. Interpretation of Section 40(1) of the Constitution Act:
The appellants contended that Section 40(1) was mandatory and required strict compliance for the validity of orders. The court, however, interpreted Section 40(1) as directory, not mandatory. The court reasoned that the provision prescribed how orders should be expressed and signed for the limited purpose of preventing them from being questioned in courts, rather than defining the only valid method for making orders.

The court held that Section 40(1) had been substantially complied with and that the Distribution Order was valid.

Conclusion:
The court dismissed all the appeals, holding that the Distribution Order was valid, the Second Lahore Tribunal had jurisdiction, and the proceedings could continue after the expiry of the Defence of India Act, 1939, due to the saving provisions. The court also clarified the interpretation of Section 40(1) of the Constitution Act, concluding that it was directory and not mandatory.