PETITIONER: S. GOVINDA MENON Vs. RESPONDENT: THE UNION OF INDIA & ANR. DATE OF JUDGMENT: 02/02/1967 BENCH: <NAME>, V. BENCH: <NAME>, V. WANCHOO, K.N. CITATION: 1967 AIR 1274 1967 SCR (2) 566 CITATOR INFO : R 1971 SC 823 (11) E 1972 SC 554 (15,16,17,62) RF 1979 SC1022 (11) ACT: All India <ORG>s (Discipline and Appeal Rules), 1955--rr. 4(1), 5(2), 7(1). Madras <ORG> Act XIX of 1951, ss. 20 , 29 , 80 , 81 , 99 , 100 (2) (m). <ORG> servant acting in capacity of 'Corporation sole'--Allegations of misconduct in discharge of duties- Whether disciplinary proceedings can be taken against him under r. 4(1)--Or whether his decisions can only be questioned in appeal or revision-Whether suspension under r. 7(1) can be ordered only after framing of charges under r. 5(2)-Whether leases for over five years required to be by public auction-Whether Commissioner can himself initiate proposals of leases. HEADNOTE: While the appellant, who was a member of <ORG> and the First Member of <ORG>, Kerala State, was holding the post of Commissioner of <ORG>, certain complaints were made against him relating to the grant of certain leases. <ORG> instituted disciplinary proceedings against him and placed him under suspension under Rule 7 of the All India <ORG>s (Discipline and Appeals) Rules, 1955. An Enquiry Officer was thereafter appointed under Rule 5 to investigate the charges. The appellant filed a petition for the grant of a writ of certiorari to quash the proceedings initiated against him and for a writ of mandamus calling upon <ORG> to permit him to function as the First Member of <ORG>. In the meantime, the Enquiry Officer having submitted a report to <ORG> finding the appellant guilty of some of the charges. a show cause notice was issued to him. At this stage the appellant applied for and obtained an amendment of his writ petition and by the amended petition sought a writ of prohibition restraining <ORG> from proceeding further upon and for quashing the show cause notice. The writ petition was dismissed by <ORG>. In appeal to this Court, it was contended, inter alia for the appellant (i) that in view of s. 80 of Madras Act XIX of 1951 which provides that the Commissioner shall be a Corporation sole, a person acting in the capacity of a Commissioner is not a <ORG> servant and there was therefore no jurisdiction to take disciplinary proceedings against him under Rule 4(1); (ii) that the Commissioner was exercising aquasijudicial function in sanctioning leases under the Act which were the subject matter of the complaints against him : his orders could therefore only be questioned in appeal as provided under s. 29(4) of the Act or examined by the <ORG> in revision under s. 99 and not by the executive <ORG>al through disciplinary proceedings; (iii) that the main charge against the appellant was not sustainable : there was nothing improper in his having sanctioned leases for over five, years without auction or in his having initiated proposals for leases in favour of specified individuals; (iv) that the proceedings under Rule 4(1) were invalid as there was no formal order 567 instituting these proceedings and (v) that the appellant could not be suspended until after charges had been framed against him. HELD : No case had been made out for the grant of a writ of prohibition under Art. 226. The King v. <NAME>  1 K.B. 491; <NAME> v. Comptroller- General of Patents and Designs  2 W.L.R. 760, 765; <ORG> v. <NAME> 59 C.L.R. 369, referred to. (i) Even if the appellant was not subject to the administrative control of the <ORG> when he was functioning as Commissioner, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings under Rule 4(1) provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the <ORG>. [574 B] <NAME> v. <NAME> 17 Q.B.D. 536, 542; referred to. There was no force in the contention that the Commissioner has a separate legal personality as corporation sole and is therefore exempt from disciplinary proceedings. [575 F] (ii) The allegations against the appellant were to the effect that in exercising his powers as Commissioner, he acted in abuse of his powers and it was in regard to such misconduct that he was being proceeded against. Therefore, although the propriety and legality of the sanction to the leases may be questioned in appeal or revision under the Act, the <ORG> was not precluded from taking disciplinary action for misconduct if this was called for. [577 H] (iii) The contention that the main charge against the appellant was not sustainable must be rejected. The Commissioner has no authority to sanction any leases without auction. Rule 1 requiring public auction framed under s. 100(2)(m) covers all leases and there is no exception in respect of leases exceeding 5 years failing within the scope of s. 29(1) . Furthermore, the Commissioner has no power under s. 20 to initiate specific proposals for lease of the trust properties. [579 A--C] (iv) The contents of the order instituting disciplinary proceedings under Rule 4(1) showed that the <ORG> had accepted the proceedings :taken up to then and decided to go forward with the-disciplinary proceedings. There was therefore no formal order necessary to initiate disciplinary proceedings under Rule 4(1) of the Rules and the order passed by <ORG> must be deemed to be an order under Rule 1 of the Rules initiating disciplinary proceedings. [580 F; 581 E, F] (v) It cannot be said that the suspension of the appellant under Rule 7 'Could only be ordered after- charges had been framed against him in :accordance with Rule 5(2). The framing of the charges under Rule 5(2) is necessary to enable the member of the service to, meet the case against him-whereas under s. 7(1) the <ORG> may place him under suspension if satisfied that this is necessary having regard to the nature of the charges -and the circumstances of the case. The word ",charges" in Rule 7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the <ORG>. [582 D-F] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1366 of 1966.

Appeal from the judgment and order dated January 5, 1966 of <ORG> in Original Petition No.1 of 1964. The appellant appeared in person.

<NAME> and <NAME>, for respondent No. 1. <NAME>, <NAME>, <NAME>, <ORG> and <NAME>, for respondent No. 2.

The Judgment of the Court was delivered by <NAME>, J. This appeal is brought, by certificate, against the judgment of <ORG> dated January 5, 1966 dismissing Original Petition No.1 of 1964 filed by the appellant.

The appellant, <NAME> is a member of <ORG>. He was the First. Member of <ORG>, Kerala State and was holding the post of Commissioner of <ORG>. On the basis of certain petitions containing allegations of misconduct against the appellant in the discharge of his duties as Commissioner <ORG> instituted certain preliminary enquiries and thereafter started disciplinary proceedings against the appellant and also placed him under suspension under rule 7 of the All India Services (Discipline and Appeal) Rules, 1955, hereinafter called the 'Rules'. A copy of the charges together with a statement of certain allegations was served on the appellant who thereafter filed a written statement of defence. After perusing the written statement the Government passed orders that his explanation was unacceptable and that the charges should be enquired into by an Enquiry Officer to be appointed under rule 5 of the Rules. Accordingly Sri <NAME> a retired I.C.S. Officer was appointed to hold the inquiry. The appellant then filed the present writ petition before <ORG> Kerala praying for grant of a writ of certiorari to quash the proceedings initiated against, him and for a writ of mandwmus calling upon. respondent No. 2, State of Kerala, to allow him to function as the. First Member of <ORG>. As no application for stay was made and as no order of stay Was passed by <ORG> Sri <NAME> proceeded with the inquiry and submitted his report to <ORG> finding the appellant guilty of charges 1 to 4 and 9. The union of India, after consideration of the report, issued a 'Show Cause Notice' Ex. P-9. The appellant thereafter filed an application before <ORG> for amendment of the writ petition. The prayer in this amended petition was for the issue of a writ of prohibition restraining the first respondent <ORG>-from proceeding further in pursuance of the 'Show Cause Notice' and also for quashing the same. The application for amendment was allowed by <ORG>. The main contention of the appellant was that the proceedings initiated against him were entirely without jurisdiction as no disciplinary proceedings could be taken against him for acts and omissions with regard to his work as Commissioner under the Madras <ORG> Act , 1951 (Madras Act XIX of 1951), hereinafter called the 'Act' and that the orders made by him being of quasi-judicial character can be impugned only in appropriate proceedings taken under that Act. After hearing the arguments advanced on both sides, <ORG> rejected the objections raised by the appellant regarding want of jurisdiction and held that the, respondents had power to proceed with the inquiry into the charges. <NAME>, J. on the other hand, took the view that quasi judicial decisions became final and conclusive if they were not set aside or modified in the manner prescribed by the statute and if the decisions are not so challenged, their correctness or legality must be taken to be conclusive, and such quasi judicial decisions cannot form the subject-matter of charges in disciplinary proceedings against the appellant. <NAME> J. held that <ORG> had therefore no jurisdiction to proceed with the inquiry on the first part of charge 1, charge 2, the first part of charge 3 and charge 4, but <ORG> had jurisdiction to proceed with the inquiry with regard to the second part of charge No. 1, the second part of charge No. 3 and charge No. 9. In view of this difference of opinion the matter was placed before <NAME> who agreed with the view taken by <ORG> and in the result the writ petition of the appellant was dismissed.

It is necessary at this stage to set out the charges leveled against the appellant. Charges 1 to 4 relate mainly to the conduct of the appellant in sanctioning 30 leases regarding the private forest lands of 5 <ORG> and charge No. 9 concerns the refusal by the appellant to attend a conference convened by the Chief Secretary to consider certain important matters connected with the national emergency. In 17 of the leases relating to the first charge the period of the lease is 36 years. In one case the period is 96 years and in the rest of the leases the period of lease is 99 years. The total area covered by all the leases comes to over 50,000 acres. Charges 1 to 4 and 9 read as follows:

"1. That you, Shri <NAME>, I.A.S., while employed in the Government. Service as member, <ORG> and Commissioner, <ORG> from 1- 2-1957 to 19-10-1962 issued sanctions granting leases of extensive and valuable forest lands belonging to the Devaswoms under your control as Commissioner such as (1) Pulpally Devaswom, (2) Kallaikulangara Emoor Bhagavathi Temple, (3) Nadivilla Vallathu Devaswom, (4) Kottiyor Devaswom, (5) Mundayanparamba Devaswom etc., in utter disregard of the provisions in the Madras Hindu Religious and Charitable Endowment Act, 1951 and the rules issued thereunder. In several cases you had yourself initiated the proposals for leases which should have been made by the trustee and acted in judgment on them by sanctioning the leases. In many cases of the leases aforesaid and otherwise generally in regard to the control and supervision exercised by you over the administration of endowments, your, conduct has been such as to render you unfit for the performance of your statutory duties under the Madras Hindu Religious and Charitable Endowments Act or as a responsible Officer of the Government.

2. That you had fixed the premium for lease, the rental and the timber value arbitrarily disregarding whether they were beneficial to the institutions as you were required to do under the Act and you there by caused wrongful gain to the lessees and wrongful loss to the <ORG>.

3. That you not only initiated proposals for the leases and sanctioned them yourself, but also took further action for putting the lessees in possession of the lands and to fell the trees thereon for which you had no authority under the Act and the Rules. In particular you attempted to influence the Collector of Kozhikode, the statutory autho- rity for the sanctioning of leases of private forests under the M. P. P. F. Act by causing your Personal Assistant to write to the Personal Assistant to the Collector thereby bringing the weight of your Official position as his official superior in your capacity as 1st Member, <ORG> to bear upon him and influence the Collector in the performance of his statutory duty.

4. That you sanctioned the lease of extensive forest lands with valuable tree- growth belonging to various Devaswoms to your relations, neighbours and friends contrary to the provision in Rule 3 of the All India Services (Conduct) Rules 1954, which enjoins every member of the service to maintain absolute integrity in all official matters.

9. That on 29-10-1962 you refused to attend a conference of the Members of <ORG> and the Inspector General of Police which was called together by the Chief Secretary in the Secretariat to discuss important matters connected with the national emergency and was thereby guilty of gross dereliction of duty and of discourtesy to the Chief Secretary."

Section 20 of the Act provides that the administration of all religious endowments shall be subject to the general superintendence and control of the Commissioner; and that such superintendence and control shall include the power to pass any orders which may be deemed necessary for the proper administration of the endowments. Section 29 of the Act states that any sale, exchange or mortgage and any lease for a term exceeding five years of any immovable property belonging to any religious institution shall be -null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution, and the Commissioner shall, before according sanction, publish particulars of the proposed transaction, invite objections and consider them. Sub-section (3) provides for communicating a copy of the order granting sanction to the <ORG> and to the trustee. Sub-section (4) provides for an appeal against the order of the Commissioner to the <ORG> by the trustee or any person having interest. Section 99(1) states:

"99. (1) The Government may call for and examine the record of the Commissioner or any Deputy or Assistant Commissioner, of any Area Committee or of any trustee in respect of any proceeding, not being a proceeding in respect of which a suit or an appeal to a Court is provided by this Act, to satisfy themselves as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein; and, if, in any case, it appears to the Government that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, they may pass orders accordingly:

Provided that the Government shall not pass any order prejudicial to any party unless he has had a reasonable opportunity of making his representations."

The jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine courts or tribunals of inferior or limited jurisdiction within their bounds. It is well-settled that the writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but the writ also lies in a case of departure from the rules of natural justice (See Halsbury's Laws of England, 3rd Edn., Vol. II, p. 114). It was held for instance by <ORG> in <NAME> that as the order of the judge of the consistory court of July 24, 1925 was made without giving the vicar an opportunity of being: heard in his defence, the order was made in violation of the principles of natural justice and was therefore an order made without jurisdiction and the writ of prohibition ought to issue. But the writ does not lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings. It is also well-established that a writ of prohibition cannot be issued to a court or an inferior tribunal for an error of law unless the error makes it go outside its (1) [1927] 1 K.B. 41 1.

jurisdiction (See <NAME> v. Comptroller-General of Patents and Designs,(1) and <ORG> v. Whyte(2). A clear distinction must therefore be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction then the matter is coram non Judice and a writ of prohibition will lie to the court or inferior tribunal forbidding it to continue, proceedings therein in excess of its jurisdiction.

The first proposition put forward by the appellant is that the Commissioner is a corporation sole and not a servant of the Government and against a person acting in the capacity of a Commissioner the Government have no jurisdiction to take disciplinary proceedings. Reference was made to s. 80 of the Act which states that "the Commissioner shall be a corporation sole and shall have perpetual succession and a common seal and may sue and be sued in his corporate name." It was argued that the acts and omissions of the appellant in his capacity as Commissioner cannot be questioned in any disciplinary proceedings as the Commissioner is not a servant of the Government subject to its administrative control. Before examining this proposition it is necessary to consider rule 4 of the Rules which states:

"4. Authority to institute proceedings and to impose penalty:-

(1) Where a member of the Service has committed any act or omission which renders him liable to any penalty specified in rule 3

(a) if such act or omission was committed before his appointment to the service, the Government under whom be is for the time being serving shall alone be competent to institute disciplinary proceedings against him and, subject to the provisions of sub-rule (2), to impose on him such penalty specified in rule 3 as it thinks fit.

(b) if such act or omission was committed after his appointment to the Service, the Government under whom such member was serving at the time of the commission of such act or omission shall alone be competent to institute disciplinary proceedings against him and subject to the provisions of sub-rule (2), to impose on him such penalty specified in rule 3 as it thinks fit and the Government under whom he is serving at the time of the institution of such proceedings shall be bound to render all reasonable facilities to the Government instituting and conducting such proceedings. (1) [1953] 2 W.L.R. 760,765.

(2) 59 CL.R. 369.

(2) The penalty of dismissal, removal or compulsory retirement shall not be imposed on a member of the Service except by an order of <ORG>.

It is not disputed that the appropriate <ORG> has power to, take disciplinary proceedings against the appellant and that he could be removed from service by an order of <ORG>, but it was contended that I.A.S. Officers are governed by statutory rules, that 'any act or omission' referred to in rule 4(1) relates only to an act or omission of an officer when serving under the <ORG>, and that "serving under the <ORG>" means subject to ,the administrative control of the <ORG> and that disciplinary proceedings should be, therefore, on the basis of the relationship of master and servant. It was argued that in exercising statutory powers the Commissioner was not subject to the administrative control of the <ORG> and disciplinary proceedings cannot, therefore, be instituted against the appellant in respect of an act or omission committed by him in the course of his employment as Commissioner. We are unable to accept the proposition contended for by the appellant as correct. Rule 4(1) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted. Rule 4(1)(b) merely says that the appropriate <ORG> competent to institute disciplinary proceedings against a member of the <ORG> would be the <ORG> under whom such member was serving at the time of the commission of such act or omission. It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a <ORG> servant. It is therefore open to the <ORG> to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the <ORG>. It is not disputed that the appellant was, at the time of' the alleged misconduct, employed as the First Member of <ORG> and he was at the same time performing the duties of Commissioner under the Act in addition to his duties as the First Member of <ORG>. In our opinion, it is not necessary that a member of the <ORG> should have committed the alleged act or omission in the course of discharge of his duties as a servant of the <ORG> in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the <ORG>; The -test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the <ORG> for .integrity or devotion to duty as a public servant. We are of the opinion that even if the appellant was not subject to the administrative control of the <ORG> when he was functioning as Commissioner under the Act and was not the servant of the <ORG> subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the <ORG>. ,In this context reference may be made to the following observations ,of <NAME>, L. J. in <NAME> v. Foster(1) :

"If a servant conducts himself in a way inconsistent with the faithful discharge of hip duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time but also if he discovers it afterwards, in dismissing that servant."

It was also contended by the appellant in this connection that as the Commissioner was made a <ORG> sole under s. 80 of the Act as a separate and independent personality, he was not subject to the control of the Government and no disciplinary proceedings 'Could be initiated against him. We do not think there is any substance in this argument. It is true that the Commissioner has been made a <ORG> sole under s. 80 of the Act which states that the ,Commissioner shall have perpetual succession and a common seal and may sue and be sued in his corporate name. Section 81(1) of the Act provides for the establishment of a Fund called '<ORG>' and further states that the Fund shall vest in the Commissioner. It was argued for the appellant that the corporate entity created by s. 80 of the Act has a separate legal personality. But there is a juristic distinction between a <ORG> sole and a ;<ORG> aggregate and the <ORG> sole is not endowed with a separate legal personality as the <ORG> aggregate. As <NAME> said:

"If our corporation sole really were an artificial person created by the policy of man we ought to marvel at its incompetence. Unless custom or statute aids it, it cannot (1) 17 Q.B.D. 536, 542.

(so we are told) own a chattel, not even a chattel real. A different and an equally inelegant device was adopted to provide an owning 'subject' for the ornaments of the church and the minister thereof-adopted at the end of the Middle Ages by lawyers who held themselves debarred by the theory of corporations from frankly saying that the body of parishioners is a corporation aggregate. And then, we are also told that in all probability a corporation sole 'Cannot enter into a contract except with statutory authority or as incidental to an interest in land .......... Be that as it may, the ecclesiastical corporation sole is no juristic person'; he or it is either natural man or juristic abortion." (See 'Selected Essays of' Maitland" pp. 100 & 103).

<NAME> has also observed as follows "It was a device for transmitting real property to a, succession of persons without the necessity for periodic. conveyances. It was never intended that this device should' be erected into a psychological person with a developed existence of its own In dealing with a corporation sole, the courts have never treated it as a conception similar in essential characteristics to a corporation aggregate. They have restricted its utility to the transmission of real, or exceptionally, by custom, as in <NAME> v. <NAME>, and now by statute, personal property from one holder of an office, lay or ecclesiastical, to his successor" (See 'Elementary Principles of Jurisprudence' by <NAME>, 2nd Edn. pp. 155 &

We accordingly reject the contention of the appellant that the Commissioner has a separate legal personality as corporation sole under s. 80 of the Act and that he is exempt from disciplinary proceedings for any act or omission committed in his capacity as. Commissioner. In our opinion, the object of the legislature in enacting ss. 80 and 81 of the Act was to constitute a separate <ORG> and to provide for the vesting of that <ORG> in the Commissioner as a corporation sole and thereby avoid the necessity of periodic conveyances in the transmission of title to that <ORG>.

We next proceed to examine the contention of the appellant that the Commissioner was exercising a quasi-judicial function in sanctioning the leases under the Act and his orders cannot therefore be questioned except in accordance with the provisions of the Act. The proposition put forward was that quasi-judicial orders, unless vacated under the provisions of the Act are final and binding and cannot be questioned by the executive Government through disciplinary proceedings. It was argued that an appeal is provided under s. 29(4) of the Act against the order of the Commissioner granting.

sanction to a lease and that it is open to any party aggrieved to file such an appeal and question the legality or correctness of the order of the Commissioner and that the Government also may in revision under S. 99 of the Act examine the correctness or legality of the order. It was said that so long as these methods were not adopted the Government could not institute disciplinary proceedings and re-examine the legality of the order of the Commissioner granting sanction to the leases.

The first part of charge No.1 was that the appellant in utter disregard of the provisions of the Act and the Rules made thereunder, passed orders sanctioning the leases, in the cases mentioned in the statement of allegations. The relevant portion of the allegation reads as follows:

"You were the Commissioner <ORG> from 1-2-1957 to 19-10-62. Under section 29 of the Madras Hindu Religious and Charitable Endowments Act of 1951, any exchange, sale or mortgage and any lease for a term exceeding 5 years of any immovable property belonging to or given or endowed for the purpose of any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. Under the proviso to the section, the particulars of the proposed transactions shall be published at least in one daily newspaper inviting objections and suggestions with respect. to the proposals and the suggestions and objections, if any, received should be considered by the Commissioner before the sanction is accorded. By the rules made under section 29 , clauses (1) and (3) of the Act, notice of the proposals for a lease for a period exceeding five years of immovable property belonging to a religious institution shall contain particulars of the nature of the proposed transaction, the correct description of the properties and information regarding the survey number, extent and boundaries, the probable price or the rental as the case may be. The rules made under section 100(2) of the Act provide that all leases of lands, buildings, sites or other immovable properties and rights belonging to a religious institution shall be made by public auction. Leases otherwise than by public auction should not be resorted to except with the previous sanction of the Deputy Commissioner. It follows from the above that the proposals for leasing out the <ORG> lands have to be initiated by the Trustee or the 'Fit Person' and that such leases have ordinarily to be granted only by auction. in exceptional cases, lands may be leased out by the trustee without auction subject to the previous sanction of the Deputy Commissioner. This provision does not, however, authorise the Commissioner, to dispose of lands without auction. His duty is to give notice of the proposal which may be received from the trustee, to call for objections and suggestions and to accord sanction if he is satisfied that the transaction is beneficial to the <ORG>. After the Commissioner accords sanction further steps for leasing out the lands have to be taken by the trustee who is the lessor and the proposed lessee. Contrary to the above provisions leases were sanctioned by you in the following cases.

It is apparent that the first part of charge No.1 read with the relevant allegations is that in utter disregard of the provisions of s. 29 of the Act and the Rules and without being satisfied that the leases were beneficial to the <NAME> the appellant sanctioned them and this action of the appellant discloses misconduct, irregularity and gross recklessness in the discharge of his official duties. The charge is therefore one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions of s. 29 and the Rules thereunder in sanctioning the leases. On behalf of the respondents it was argued both by Mr. <NAME> and Mr. <NAME> that the Commissioner was not discharging quasi-judicial functions in sanctioning leases under s. 29 of the Act, but we shall proceed on the assumption that the Commissioner was performing quasi- judicial functions in granting leases under s. 29 of the Act. Even upon that assumption we are satisfied that the Government was entitled to institute disciplinary proceedings if there was prima facie material for showing recklessness or misconduct on the part of the appellant in the discharge of his official duty. It is true that if the provisions of s. 29 of the Act or the Rules are disregarded the order of the Commissioner is illegal and such an order could be questioned in appeal under s. 29(4) or in revision under s. 99 of the Act. But in the present proceedings what is sought to be challenged is not the correctness or the legality of the decision of the Commissioner but the conduct of the appellant in the discharge of his duties as Commissioner. The appellant was proceeded against because in the discharge of his functions he acted in utter disregard of the provisions of the Act and the Rules. It is the manner in which he discharged his functions that is brought up in these proceedings. In other words, the charge and the allegations are to the effect that in exercising his powers as Commissioner the appellant acted in abuse of his power and it was in regard to such misconduct that he is being proceeded against. It is manifest therefore that though, the propriety and legality of the sanction to the leases may be questioned in appeal or revision under the Act, the Government is not precluded from taking disciplinary action if there is proof that the Commissioner had acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed conditions which are essential for the exercise of the statutory power. We see no reason why the Government cannot do so for the purpose of showing that the Commissioner acted in utter disregard of the conditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence. We are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of the case. We pass on to consider the next contention of the appellant that the first part of charge No.1 is not sustainable because the only rules said to have been violated was the rule regarding auction. It was argued that the rule regarding auction did not apply to long-term leases falling within the scope of s. 29(1) of the Act and the first part of charge No.1 was therefore not sustainable. We are unable to accept this argument as correct. The statement of allegations in respect of charge No.1 sets out the provisions of s. 29 of the Act, the rules made under cls. (1) & (3) of that section and the rules made under s. 100(2)(m) of the Act and it says that contrary to the above provisions leases were sanctioned. Rule 1 of the Rules framed under s. 100(2)(m) of the Act reads as follows:

"All leases of lands, buildings, sites and other immovable properties and rights belonging to a religious institution shall be made by public auction held in the places in which the properties are situate or the rights exist. The Deputy Commissioner may if he is satisfied that in any case the holding of an auction at a place other than the one in which, the properties proposed to be leased are situated will not be detrimental to securing a proper bid, permit such auction, but no auction shall be held in a village situated in a district other than the one in which the property is situate."

It was argued on behalf of the respondents that all leases had to be made by public auction and the Commissioner had no authority to sanction any leases without auction and that the power to waive the public auction is given to the Deputy Commissioner and not to the Commissioner under rule 9. In this connection reference was made by the appellant to rule 2(2) which provides that auction is to be conducted in the case of a lease for a period of one year or more within one month, and in the case of a lease for a period of less than one year, within 15 days after the date of the trustee's decision regarding the period for which the lease should be given. It was said that it would be impossible to conduct an auction in such a case within one month of the date of the trustee's decision because a minimum period of 30 days is prescribed between the notice and hearing of objections under s. 29 . It was said that some more time will necessarily have to be allowed for the trustees to send an application after they decide the period of the lease and for the Commissioner to issue the notice himself and to communicate his ,sanction to the trustees.' We do not think there is any substance in this argument because it is open to the trustee to hold the auction in the first place under Rule 1 even in the -case of a lease for a period over 5 years and then send the proposal to the Commissioner for sanction. We are accordingly of the opinion that Rule 1 made under s. 100(2)(m) of the Act providing for auction applies to leases for over 5 years under s. 29 of the Act and the Commissioner had therefore no authority for sanctioning any leases without auction under s. 29(1) of the. Act. In other words, Rule 1 requiring public auction framed under s. 100(2)(m) covers all leases and there is no exception in respect of leases exceeding 15 years falling within the scope of s. 29(1) of the Act. We accordingly reject the argument of the appellant on this aspect of the case.

As regards the second part of charge No. 1, it was argued by the appellant that there was no prohibition in the Act for the Commissioner to himself initiate the proposal for leases and therefore the charge cannot be sustained. The question for consideration is whether the Commissioner could initiate a proposal for lease in favour of a specified individual with all the terms and conditions. It is not disputed by the appellant that the trustee is the proper person to initiate a proposal for lease of the trust properties, but it is argued that under s. 20 of the Act the Commissioner can make specific proposals for leases and that he (:an himself sanction them under s' 29. The first part of s. 20 speaks of the general superintendence and control of the Commissioner over the administration of all religious endowments. The section goes on to state that. such superintendence and control shall include. the power to pass an order which may be necessary to ensure that such endowments are properly administered and their income is really appropriated for the purpose for which they were founded. In our opinion, the language of this section does not suggest that the Commissioner himself is vested with the power to make specific proposals for leases of trust properties. Under s. 29 of he Act the Commissioner is given a specific power to accord sanction in for any alienation and for leases for a term exceeding 5 years. That section implies that the proposals for leases must originate from the trustees and not from the Commissioner himself and that the only function of the Commissioner is to accord sanction to' such proposals. If the language of s. 20 is understood as suggesting that the Commissioner has power to initiate proposals it would mean that the Commissioner himself may sit in judgment over the proposals initiated by him. It cannot be supposed that the legislature contemplated such a consequence. In this context it is necessary to remember that under the general law the trustee is the person competent to make alienation or grant lease of <ORG> properties. It is true that the Sup Cl/67-8 legislature has put a restriction on the power of alienation and the power of granting leases by s. 29 of the Act, but the statutory restriction on the power of the trustee should not be interpreted in such a way as to abrogate all his power in respect of alienation or. lease. We are accordingly of the opinion that the Commissioner has no power to initiate specific proposal for lease of the trust properties and the argument of the appellant on this point must be rejected The third part. of charge No.1 is not a separate charge but could be enquired. into along with other parts of charge No,

1. As regards charges 2, 3 and 4 it is not shown on behalf of the appellant that there is any defect of jurisdiction and that the respondents-cannot proceed with the inquiry. The next question to be considered is whether the disciplinary proceedings against the appellant were validly instituted as required by Rule 4(1)(b) of the Rules. It was submitted by the. appellant that there was no formal order of the Government for instituting these proceedings. For the respondents it was contended that the question is barred by res judicata by reason of the decision of <ORG> in <CITATION> .(1). In that case, the order of suspens on was challenged by the appel- lant by a writ petition in O. P. No. 485 of 1963 -which was dismissed by <NAME>, J. Against that decision the appellant 'preferred an appeal which was dismissed by the Division Bench. It was contended by the appellant that the only issue considered in that case was whether the appellant could be suspended before the charges were framed and the rule of res judicata was not applicable. We shall assume in favour of the appellant that the question is not barred by res judicata. Even so, we are of the opinion that to there is no substance in the contention of the appellant that there was no valid institution of the disciplinary proceedings under rule 4(1). A perusal of the order of the Government, Ex.P-1 'would itself indicate that disciplinary proceedings had been initiated against the "appellant. Exhibit P-1 reads as follows:

"The Government have received several petitions con-' taining serious alleptions of official misconduct against Shri <NAME>, I.A.S. First Member, <ORG> and formerly Commissioner, Hindu Religious and Charita-. ble Endowments (Administration). Preliminary enquires, caused to be conducted into the allegations have shown prima facie, that the officer is guilty of corruption,, nepotism and other irregularities of a grave nature. <ORG> had also occasion to comment on the conduct of the officer in their judgment in O.P. 2306/62 delivered on - 12th February 1963. The judgment begins with the (1) [1963] K.L.T. 1162.

observation that 'this case, if it has served little else, has served to expose a disquieting state of affairs regarding the disposal of valuable forest lands belonging to a religious institution known as <ORG> of which I trust due notice will be taken by the competent authority in the interests of the public administration and the preservation of our forest wealth no less than in the interests of this particular institution'.

The judgment in the above case and the preliminary report of the X-<ORG> police have disclosed the following, grave charges of serious irregularity and official misconduct on the part of the accused or The detailed enquiry into the charges by the X-<ORG> is in progress. The evidence in the case has to be collected from a large number of officers who are subordinate to the accused officer in his capacity as First Member of <ORG>. In the interest of the proper conduct of the enquiry it is necessary that the officer should not be allowed to continue in that post. Having regard to the nature of the charges against the officer and the circumstances the proper course would be to place him under suspension. <NAME> <ORG>, is therefore placed under suspension under Rule 7 of the All India Services (Discipline and Appeal) Rules 1955 till the disciplinary proceedings initiated against him are completed."

A perusal of this document shows that the <ORG> had accepted the proceedings taken in, the matter uptil that date and had decided to go forward with the disciplinary proceedings. In our opinion, there is no formal order necessary to initiate disciplinary proceedings under Rule 4(1) of the Rules and the order of the State <ORG> under Ex. P-1 must be deemed to be an order under Rule 4(1) of the Rules initiating disciplinary proceedings. It was lastly submitted, that the order of suspension of the appellant dated March 8,1963 is not in compliance with Rule 7 of the Rules which states:

"7. Suspension during disciplinary proceedings

(1) If having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceeding; is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started that Government may-

(a) if the member of the Service is serving under it pass an order placing him under suspension, or It was pointed out that definite' charges were framed on June 6, 1963 and the Government had not authority to suspend, the appellant before the date of framing charges. Reference was made to Rule 5(2) which states:

"5..(2) The grounds oil which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the member of the Service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case."

It was argued by the appellant that the word "charges" which occurs in Rule 5(2) and Rule 7 should be given the same meaning and no order of suspension could be passed under Rule 7 before the charges are framed under Rule 5(2) against the appellant. We do not think there is any substance in this argument. Rule 5(2) prescribes that the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges. Under rule 5(3) a member of the <ORG> is required to submit a written statement of his defence to the charge or charges. The framing of the charge under Rule 5(2) is necessary to enable the member of <ORG> to meet the case against him. The language of rule 7(1) is however different and that rule provides that the <ORG> may place a member of the <ORG> under suspension "having regard to the nature of

-the charge/charges and the circumstances in any case" if the Government is satisfied that it is necessary to place him under suspension. In view of -,he difference of language in Rule 5(2) and Rule 7 we are of the )pinion that the word "charges" in rule 7(1) should be given a wider meaning as denoting the accusations or imputations against the member of the <ORG>. We accordingly reject the argument of the appellant on this aspect of the case For the reasons already expressed we hold that the appellant has made out no case for the grant of a writ of prohibition under Art. 226 of the Constitution and the majority judgment of <ORG> dated January 5, 1966 is correct and this appeal must be dismissed. In the circumstances of the case we do not make any order as to costs.

R.K.P.S. Appeal dismissed.


PETITIONER: <NAME> AND ANOTHER Vs. RESPONDENT: THE STATE OF MADHYA PRADESH. DATE OF JUDGMENT: 14/05/1954 BENCH: <NAME>, <NAME> (CJ) BENCH: <NAME>, <NAME> (CJ) MUKHERJEA, <NAME>, VIVIAN BHAGWATI, <NAME>, T.L. VENKATARAMA CITATION: 1954 AIR 465 1955 SCR 313 CITATOR INFO : R 1957 SC 478 (11) R 1957 SC 510 (14) RF 1957 SC 896 (12) R 1960 SC 475 (4,9,13,16) RF 1961 SC 4 (4,15) R 1961 SC 705 (17) R 1961 SC1602 (12) F 1961 SC1731 (13) RF 1964 SC 381 (38) R 1965 SC1107 (60) R 1966 SC1788 (10,14) RF 1967 SC 212 (27) RF 1967 SC 669 (21) RF 1968 SC1232 (15,53,82,95) RF 1970 SC 564 (185) RF 1973 SC 106 (147) RF 1973 SC1461 (227,450,566,1847,1848,1998) R 1974 SC 366 (56) E&D 1974 SC 543 (13) R 1974 SC1660 (18) R 1978 SC 851 (39) RF 1978 SC1296 (12) E 1980 SC 350 (4) R 1982 SC1126 (10,11) RF 1983 SC1019 (29,30) F 1987 SC1802 (9) R 1990 SC 560 (13,31) RF 1991 SC 672 (29) ACT: Constitution of India- Art. 19(1)(f) and (g)- Cotton Textile, (Control of Movement) Order, 1948, cl. 3- Promulgated under s. 3 of Essential Supplies (Temporary Powers) Act, 1946-PermitRequirement of-to dispose of or transport cotton textiles-Whether violation of Art. 19(1)(f) and (g)- Essential Supplies (Temporary Powers) Act, 1946 (XXIV of 1946) ss. 3, 4,6-Whether ultra vires the <ORG> on ground of delegation Of legislative powers-s. 6-Whether repeals or abrogates-pre-existing laws-Effect of the section -Delegation-Essential power of legislation- Whether can be, delegated-Principles underlying it- Requirements.of permit by clauses 3 and 4 of the Control Order--Whether in conflict with ss. 27 , 28 , 41 of the Railway Act. 381 HEADNOTE: Clause 3 of the Cotton Textile (Control of Movement) Order, 1948, promulgated by <ORG> 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 19(1) 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. <CITATION> (( S.C.R. 803) distinguished. It was settled by the majority judgment in the Delhi Laws Act case ('S.C.R. 747) that the essential powers of legislation cannot be delegated. The <ORG> 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 <ORG> 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 <ORG> 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 <ORG> and it is not correct to say that the instrumentalities have not been selected by the <ORG> itself. Accordingly section 4 of the Act is not ultra vires on the ground of excessive delegation of legislative powers. <NAME> v. <ORG> ( A.C. 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. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal 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 <ORG> Hoshangabad, in Criminal Case No. 75 of 1949.

<NAME>, <NAME> and <NAME> for the appellants.

<NAME>, Advocate-General of Madhya Pradesh (<NAME> and <NAME>, with him) for the respondent. 1954. May 14. The Judgment of the Court was delivered by <NAME> facts giving rise to this appeal are these: The appellant, <NAME>, and his wife, Smt. <NAME>, were arrested at Itarsi, by <ORG> 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) Order., 1948, having been found in possession of new cotton cloth " weighing over six maunds which cloth, it was alleged,was 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 <ORG> to itself on the 3rd of September,'1951, as it involved a decision of constitutional issues. By its order dated the 15th September, 1952, <ORG> 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. <ORG> directed that the prosecution should proceed and the records sent back to <ORG> 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. <NAME>, 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 19(1)(f) 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 <ORG> 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 27 , 28 and 384  41 of the Indian Railways Act, and was thus void in its entirety.

The respondent challenged the judgment of <ORG> that section 6 of the Act was unconstitutional. In our judgment, none of the points raised by Mr. <NAME> have any validity. On the other hand, we are of the opinion that <ORG> 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. <ORG> may by notified order direct that the power to make orders 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 runs thus:

"6. Any 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."

Under powers conferred by section 3 <ORG> 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 <ORG>, prescribe the manner in which any application for a special transport permit under this Order shall be made. <ORG> has prescribed forms for application for obtaining permits and the conditions under which permits can be obtained. The first question canvassed by Mr. <NAME> 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 19(1) 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 <ORG> passed the Essential Supplies (Temporary Powers) Act  authorising <ORG> 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 19(1). 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 19(1). <ORG> was therefore right in negativing the contention raised regarding the invalidity of the Control Order as abridging the rights of the citizen under article 19(1) of the Constitution.

Mr. <NAME> 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 <CITATION> (1), this Court declared void section 4(3) 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) A.T.R. 1954 S.C. 225 ;  S.C.R. 80o3.

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 <ORG> in <NAME> case(1) is not very opposite and has no bearing on the present case. Section 4(3) 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 4(3) of the Uttar Pradesh Coal Control Order was in these terms: " <ORG> 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 <ORG> 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 <ORG> is to be exercised in such a way as to effectuate this policy. The conferment of such a discretion

(i) A.I.R. 1954 S.C. 225; [1954] S.C.R. 803.

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 <ORG> for the grant or refusal of permits.

The next contention of Mr. <NAME> 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 <ORG> 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 <ORG> 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 <ORG>, vide <NAME> v. The <NAME> (2), <NAME> v. The <NAME> (3), and <NAME> v. <ORG> (4)and 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)  S.C.R. 747.

(2) 7 A.C. 829.

(3) 9 A.C. II7.

(4) [I938] A.C. 708.

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. <NAME> 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 <ORG> to delegate its own power to-make orders under section 3 to any officer or authority subordinate to it or <ORG> or to any officer or authority subordinate to <ORG> as specified in the direction given by <ORG>. 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. <NAME> contended that it was for the <ORG> itself to specify the particular authorities or officers who could exercise power under section 3 and it was not open to the <ORG> to empower <ORG> to say what officer or authority could exercise the power. Reference in this connection was made to two decisions of <ORG> of the United States of America-<ORG> v. <NAME> (1) and <NAME> v. 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 <ORG> is to apply. These decisions in our judgment do not help the contention of Mr. <NAME> as we think that section 4 enumerates the classes of persons to whom - the power could be delegated or sub-delegated by <ORG> and it is not correct to say that the instrumentalities have not been selected by the <ORG> itself. The decision of their Lordships of <ORG> in <NAME>'s case (3), completely negatives the contention raised regarding the invalidity of section 4 .

(1) 293 US 388. (3) [1938] A.C. 708.

(2) 295 U.S. 495.

In that case the Lt.Governor in <ORG> was-given power to vest in a marketing board the powers conferred by section 4A(d) 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 Lt.Governor in <ORG>. This contention was answered by their Lordships in these terms: " The third objection is that it is not within the powers of '<ORG> to delegate so-called legislative powers to the Lt.-Governor in <ORG>, or to give him powers of further delegation This objection appears to their Lordships subversive of the rights which <ORG> 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 <ORG> is as supreme as any other <ORG>; and it is unnecessary to try to enumerate the innumerable occasions on which <ORG>, 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 <ORG> 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.

The last contention of Mr. <NAME> 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 <ORG> for holding that the two sections were not so interconnected that the invalidity of one would make the other invalid, <ORG> 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 <ORG> 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 <ORG> 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 <ORG> 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) S.C.R, 747.

Act, 1946, 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 <ORG> itself. By enacting section 6 <ORG> 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 <ORG> 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 <ORG> 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. <ORG> 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 <ORG> 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, 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 <ORG> is directed to proceed expeditiously with the case in accordance with law. Appeal dismissed.


<NAME>

1. This has come up before us exercising jurisdiction over matrimonial causes under Section 17 of the Indian Divorce Act (Act IV of 1869), hereinafter referred to as the Act, for confirmation of a decree nisi passed by the learned Additional District Judge, 24 Parganas, dissolving the marriage.

2. It was a wife's petition under Section 10 of the Act. The grounds were adultery with the other aggravated circumstance, viz., cruelty. The petitioner has two minor children, born out of the wedlock living with her. The learned Judge passed the decree mentioned above and also directed custody of the children to the petitioner. The husband (respondent) was further directed to pay a monthly sum of Rs. 250/- to the wife (petitioner) as alimonv pending the suit.

3. I have reviewed the entire evidence. All pertinent facts are brought out to prevent the blinding of our eyes. The parties profess Christian religion. They were legally married. They were of Indian domicile at the date of the presentation of the petition They last resided within the jurisdiction of the <ORG> below. There is no collusion between the parties. The petitioner has not been in any manner consistently accessory to or conniving at the adultery. There is no proof of connubial intercourse after the adultery, which would be a prima facie evidence of condonation. The petitioner has not slumbered in sufficient comfort and there is no unreasonable delay in presenting the petition. It is not a motion on behalf of the guilty party being adulterous herself.

Neither the petitioner is guilty of cruelty to the respondent or of separating herself from him or oi any wilful neglect or misconduct towards him. The husband on the other hand is held to be cruel. The said cruelty is such, as without adultery it would have entitled the wile a divorce from bed and board (a mensa et toro). The notice was properly served. Statutory six months have elapsed from August 1, 1961, the date of signing of the decree by the learned Judge but the records were only sent up by him to this Court on an application being moved by the petitioner specially for that purpose and not earlier. I regret to record that the said state of affairs is not very much creditable to the Court concerned.

4. The guilt of adultery in the present case is held to be proved, but circumstantially. There is a letter of the husband to the wife in the present case (Ext. 4) admitting the adultery but this letter stands in isolated glory. There is no other letter. There is no other item of the conduct of-the husband which is admitted and which is consistent with the contents of the said letter. Hence we would have to consider whether the proof by circumstantial evidence would be sufficient in such cases.

5. It is not necessary that there should be direct evidence of adultery; as it is not easily available, rather direct proof is very rare. It has been pointed out in a number of cases that rarely the parties are surprised in a direct act of adultery (Rayden on Divorce, 7th Edn. pp. 135, 136). But circumstantial evidence must be sufficiently strong and conclusive. Association coupled with opportunity, illicit affection, undue familiarity, guilty attachment are some of the instances which create an inference upon which the <ORG> can act. There is an old legal maxim in Scotland which runs as follows : "Solus cum sole in suspecto loco non presumitur dicere pater noster", which being translated means that when a man and a woman are found together under suspicious circumstances, it cannot be presumed that they are saying their prayers. It would also be difficult to ascribe the theory of "platonic love" in such circumstances hut then again the circumstances must be such as would lead "the guarded discretion of a reasonable and just man to the conclusion" or "fair inference as a necessary conclusion". (See the observations of Sir <NAME>, determined in the Consistory <ORG> of London, in the classic case of <NAME> v. <NAME>, (1810) 161 ER 648. Though the said discretion is held to be unfettered in some cases but the same must not be exercised capriciously but cautiously and with utmost care.

6. In the case of an adultery, no higher proof of a fact is demanded than that it is established beyond all reasonable doubt. ( <CITATION> , (1823) 37 ER 1049). "But what is reasonable doubt, is always difficult to decide and varies in practice according to the nature of the case and the punishment which may be awarded", Lord <NAME> pronounces in <ORG> v. <ORG>, 1951 (1) All ER 124. In my opinion, Lord <NAME>'s dictum in <NAME> v. <NAME>, (1945) 2 All ER 190 that the same strict proof is required in the case of matrimonial offence as required in connection with criminal offence has been widely expressed. Tn my judgment the correct approach has been laid down by <NAME> in <NAME> v. <NAME>, (1950) 1 All ER 804 that the <ORG> should not be irrevocably committed to the view that a charge of adultery must be regarded as a criminal charge. The statute lays down a standard and puts adultery on the same footing as Cruelty, desertion or unsoundness of mind. The rule as to the standard of proof, laid down at p. 138 by Lord <NAME> in <ORG> in the case of <ORG>,. (1951) 1 All ER T24 (supra) has been accepted by their Lordships in the Supreme <ORG> in the case of <NAME> v. <NAME>, . Their Lordships observed that the said rule should be followed by the Indian <ORG>s under Section 7 of the Act. It is held that it is the duty of the <ORG>s to pronounce a decree, only when it is satisfied that the case has been proved beyond reasonable doubt as to the commission of a matrimonial offence. The evidence must be clear and satisfactory beyond mere balance of probabilities. In that eventuality the provisions o; Section 14 of the Act would be taken to be satisfied. The evidence in the present case satisfies the above tests.

7. I am not unmindful of the general notions that the proceeding under Section 17 of the Act has no exact parallel in other countries; that the petition for divorce is not of the nature of an undefended civil suit; that such cases are not to be decided on ground of sympathy; and that it is also not enough for one of the parties to come forward and say exactly following the terms of the Act but it seems to me repugnant that <ORG> should be so little in accord with the common notions of mankind that it should require the evidence to displace fantastic suggestions. As so often occurs in human affairs, however, the difficulty lies in drawing the line. But the <ORG>, while exercising its discretion in matrimonial causes, must have regard not only" to the rights and liabilities of the matrimonial persons wronged and of the wrongdoer respectively inter se but also to the interest of society and public morality, and to discourage vice and immorality.

8. Reluctant as I am, as a matter of general principle, to dissolve a union, unless it becomes impossible to allow it to continue and there are compelling circumstances in favour of dissolution; in all the circumstances of this case I think I should be going far beyond any other authorities and should be ignoring altogether the paramount consideration applicable to such cases, viz., the interest of public morality. I find that there is sufficient legal evidence to support the decree,

9. For all these reasons I am of opinion that the decree nisi should be confirmed and I order accordingly. There will be no order for costs.

<NAME>, J.

10. I agree.

<NAME>, J.

11. I agree.