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PETITIONER: ATLAS CYCLE INDUSTRIES LTD. AND ORS.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT04/10/1978

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT FAZALALI, SYED MURTAZA KAILASAM, P.S.

CITATION:  1979 AIR 1149            1979 SCR  (1)1070  1979 SCC  (2) 196  CITATOR INFO :  R          1980 SC1382  (88)  D          1988 SC 535  (24)

ACT:      Essential Commodities  Act 1955 (Act 10 of 195)-Section 3(6)Requirement  as   to  laying   before  both   Houses  of Parliament-Directory not mandatory-Non-lying of notification fixing the  maximum selling  prices of various categories of controlled commodities  before both  Houses  of  Parliament- Whether results in nullification of the notification.      Delegated Legislation-Provisions  relating to laying of delegated legislation  of subordinate law making authorities and orders passed by subordinate executive instrumentalities before both  Houses of  Parliament-"Laying clauses"-Examined and discussed.

HEADNOTE:      The appellants  were  prosecuted  for  the  offence  of acquiring a  controlled commodity  at a rate higher than the maximum statutory price fixed for such commodity by the Iron JUDGMENT: Control Order, 1956. In the course of proceedings before the trial court  the appellants  made an  application u/s 251A & 288 Cr.P.C.  raising various objections to their prosecution including, that  the  notification  fixing  maximum  selling prices of  various categories  of Iron & Steel including the commodity in  question was  not placed before the Parliament and as  such was not valid. Observing that the laying of the notification  before  the  Parliament  could  be  proved  by contemporaneous record  and that it was not possible to hold that cognizance  of the  offence was  taken  on  an  invalid report and  the order  framing the  charge was a nullity the trial Court dismissed the application.      In its  writ petition  filed under Arts. 226 and 227 of the   Constitution,    the   appellants   challenged   their prosecution on  the ground  that the  control order  and the notification did  not have  the force of law as they had not been  laid   before  the   Houses  of  Parliament  within  a reasonable time  as required  by the  Essential  Commodities Act. The High Court dismissed the writ petition.      On the  question, whether  the notification  fixing the

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maximum selling  price of  the commodity  was void,  for not having been laid before both Houses of Parliament.      Dismissing the appeal, the Court ^      HELD: 1.  Non-laying of  the  notification  fixing  the maximum selling  prices of  various categories  of iron  and steel including the commodity in question before both Houses of  Parliament   cannot  result   in  nullification  of  the notification.  The  legislature  never  intended  that  non- compliance with  the requirement  of laying  as envisaged by section 3(6)  of the Act should render the order void. [1088 C, B] 1071      2. Though  section 3(6)  of the Act provides that every order made  by the  Central Government  or by any officer or authority of  the Central  Government shall  be laid  before both Houses  of Parliament  as soon  as may  be after  it is made, the important point to be considered in the absence of a provision  prescribing the  conditions, the period and the legal  effect   of  the  laying  of  the  order  before  the Parliament  is   whether  the   provision  is  directory  or mandatory. The use of the word ’shall’ is not conclusive and decisive of  the matter  and the  Court has to ascertain the true intention  of the legislature, which is the determining factor, and  that must  be done  by looking carefully to the whole scope, nature and design of the statute. [1078 C-E]      State of  U.P.  v.  Manbodhan  Lal  Srivastava,  [1958] S.C.R. 533,  The State of Uttar Pradesh and Ors. v. Babu Ram Upadhya, [1961] 2 S.C.R. 679 referred to.      Craies Statute Law 5th Edn. p. 242.      3. Two  considerations for  regarding  a  provision  as directory  are:   (1)  absence  of  any  provision  for  the contingency of a particular provision not been complied with or  followed  and  (2)  serious  general  inconvenience  and prejudice that would result to the general public if the act of the  government or an instrumentality is declared invalid for non-compliance with the particular provision.[1079 C]      4. The  policy and  object  underlying  the  provisions relating to  laying the  delegated legislation  made by  the subordinate law  making  authorities  or  orders  passed  by subordinate executive  instrumentalities before  both Houses of Parliament,  being to  keep supervision  and control over the aforesaid authorities and instrumentalities, the "laying clauses" assume  different forms  depending on the degree of control which  the Legislature  may like  to  exercise.  The three kinds  of laying  which  are  generally  used  by  the Legislature are  (i) laying  without further  procedure (ii) laying subject  to negative resolution, (iii) laying subject to affirmative  resolution. Each case must depend on its own circumstances or  the wording of the statute under which the rules are made. [1079 D, E; 1081 D]      Hukam Chand  etc. v.  Union of  India and Ors. [1973] 1 S.C.R. 986 referred to.      Craies Statute Law 7th Edn. pp. 305-307.      5. In  the instant case, section 3(6) of the Act merely provides that  every order  made  under  section  3  by  the Central Government  or by  any officer  or authority  of the Central Government,  shall be  laid before  both  Houses  of Parliament, as soon as may be, after it is made. It does not provide that  it shall  be subject  to the  negative or  the affirmative resolution  by either  House of  Parliament.  It also  does  not  provide  that  it  shall  be  open  to  the Parliament, to  approve or  disapprove the  order made under section 3  of the Act. It does not even say that it shall be subject to any modification which either House of Parliament

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may in its wisdom think it necessary to provide. It does not even specify  the period  for which  the order is to be laid before both  Houses of  Parliament nor  does it  provide any penalty for  non-observance of  or non-compliance  with  the direction as to the laying of 1072 the order  before both Houses of Parliament. The requirement as to  the  laying  of  the  order  before  both  Houses  of Parliament is  not a  condition precedent  but subsequent to the making  of the  order.  In  other  words,  there  is  no prohibition to the making of the orders without the approval of both  Houses of  Parliament. Therefore the requirement as to laying  contained in section 3(6) of the Act falls within the first category i.e. "simple laying" and is directory and not mandatory. [1081 E-1082 A]      Jan Mohammed  Noor Mohammed  Bagban  v.  The  State  of Gujarat and Anr., [1966] 1 S.C.R. 505; relied on.      D.  K.   Krishnan  v.   Secretary,  Regional  Transport Authority Chittor,  A.I.R. 1956  AP.  129,  State  v.  Karna (1973) 24 RLW 487.      Mathura Prasad  Yadava v.  Inspector  General,  Railway Protection Force,  Railway Board,  New Delhi and Ors. (1974) 19 MPLJ.  373, Krishna  Khanna and  Anr. v. State of Punjab, A.I.R. 1958, Punjab 32; approved.      Narendra Kumar and Ors. v. The Union of India and Ors., [1960] 2 S.C.R. 375; distinguished.      Express Newspapers  (P) Ltd.  and Anr.  v. The Union of India and  Ors., [1959]  S.C.R. 12;  In re. Kerala Education Bill 1957, 1959 S.C.R. 995; not applicable.      Bailey v.  Williamson 1873  LR VIII Q.B. 118, Storey v. Graham (1899) Q.B. 406 referred to.

&      CRIMINAL APPELLATE  JURISDICTION: Criminal Appeal 24 of 1976.      From the  Judgment and  Order dated  31-9-1974  of  the Punjab and  Haryana High  Court in  Criminal Writ  No. 32 of 1970.      B. Sen. (for appellant No. 1), A. K. Sen (for Appellant No. 2),  J. C.  Bhatt (for  appellant No.  3), F. S. Nariman (for appellant  No. 4),  A. B.  Diwan (for appellant No. 4), I.N. Shroff and H. S. Parihar for the Appellants.      D. Mukherjee, E. C. Agrawala and R. N. Sachthey for the Respondent.      The Judgment of the Court was delivered by      JASWANT SINGH,  J.-During the  course of  on spot check carried out by him on December 29, 1964 of B.P. sheets lying in appellant  No. 1’s  factory at  Sonepat, the  Development Officer (LME-1)  of the  Directorate  General  of  Technical Development, New  Delhi, discovered  from an  examination of the said  appellant’s account  books that  it had during the period intervening  between January  1, 1964 and January 12, 1965, acquired  black plain  iron sheets  of  prime  quality weighing 1073 60.03 metric tons from various parties at a rate higher than the maximum  statutory price  fixed for  such sheets  by the Iron and  Steel Controller  (hereinafter referred to as ’the Controller’) in  exercise of  the powers vested in him under clause 15(1)  of the  Iron and  Steel (Control)  Order, 1956 (hereinafter referred  to as  ’the Control  Order. After the Special Magistrate had framed the charges and secured in the Court of the Special Magistrate, Ambala Cantt for an offence

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under section  120-B of  the Indian  Penal  Code  read  with section 7 of the Essential Commodities Act, 1955 (Act No. 10 of 1955)  (hereinafter referred to as ’the Act’) as also for an offence  under section  7 of  the Act read with clause 15 (3) of  the Control  Order. After the Special Magistrate had framed  the   charges  and   examined  sixteen   prosecution witnesses, the  appellants made an application before him on February 12, 1970 under section 251A (11) and 288 (1) of the Code of Criminal Procedure, 1898 praying that in view of the submissions made  therein, the  case  against  them  be  not proceeded with  and they  be acquitted. The trial Magistrate dismissed the application vide his order dated June 4, 1970, relevant portion  whereof is extracted below for facility of reference :-      "In the light of the above observations, I am prevented      from determining  the case  otherwise than by making an      order of  acquittal or conviction which I can pass only      after recording  further evidence  both of  prosecution      and in defence.           Regarding various objections raised by the learned      counsel  for   the  accused  on  the  points  that  the      notifications were not placed before the Parliament and      within a  reasonable time  and also  on the  points  of      formation of  opinion and  delegation of  powers I  may      submit that  the prosecution  cannot be  prevented from      adducing evidence  regarding the  formation of  opinion      and laying  of the  notifications before the Parliament      which can  be proved  by  the  contemporaneous  record.      Regarding the  non-prosecution of  the sellers  of  the      black iron  sheets it  does not lie in the mouth of the      accused to  say that  such and such person has not been      prosecuted. I  need not  to  give  my  observations  on      merits on  the points regarding subsequent exemption of      control mens-rea,  formation of  opinion and delegation      of powers in laying notifications before the Parliament      and also  need not discuss the citations as I will have      to consider 1074      all these points at the time of final arguments and any      order given now will not be proper.           I dismiss  the application  of the  accused on the      short ground  that it is not possible for this Court to      hold that the cognizance was taken on an invalid report      and the  order of  the Court ordering framing of charge      is a nullity on the ground that on record no offence is      committed and no cognizance could be taken."      Aggrieved  by   the  aforesaid  order  of  the  Special Magistrate, the  appellants moved  the High  Court of Punjab and Harayana  under Articles 226 and 227 of the Constitution and section  561-A of  the Code  of Criminal Procedure, 1898 challenging their prosecution inter alia on the grounds that the Control  Order and  the notification  which  formed  the basis of  their prosecution did not have the force of law as they had  not been  laid before  the  Houses  of  Parliament within a  reasonable time  as required under section 3(6) of the Act;  that the Control Order and the Notification fixing the maximum  selling price  of the commodity in question for the contravention of which the appellants had been hauled up were invalid  as the  same did  not appear to be preceded by the formation of the requisite opinion under section 3(1) of the Act  which was  a sine qua non for issue of any order by the Central  Government or  by the  Controller; that none of the 18 concerns which, according to the prosecution sold the aforesaid B.P. sheets to the appellants and who were equally guilty of the offence under section 7 of the Act having been

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proceeded  against,   in  the   Court   of   the   competent jurisdiction,  the   prosecution  of   the  appellants   was violative of  Article 14  of the  Constitution and  that the purchases of  the aforesaid  B.P. sheets  having been openly made and  entered in  the account  books of appellant No. 1, the mens rea which was a necessary ingredient of the offence under section 7 of the Act was totally lacking in the case.      In the  return filed  by it  in opposition  to the writ petition, the  respondent while  denying  that  the  Control Order had  not been placed before both Houses of Parliament, as required  by sub-section  (6) of  section 3 of the Act or that the  issue of  the Control  Order or  the  Notification fixing maximum  selling prices of various categories of iron and steel  including the commodity in question was not based on the  formation of  the opinion envisaged by sub-section 1 of section  3 of  the Act  conceded  that  the  notification fixing the  maximum selling prices of the categories of iron and steel  including the  commodity in question had not been placed before  both Houses  of Parliament but contended that the provisions of sub-section (6) of section 3 of the 1075 Act requiring  the placing  of the  order contained  in  the aforesaid notification before both Houses of Parliament were directory and  not mandatory and the omission to comply with that requirement did not have the effect of invalidating the notification. The  respondent  further  contended  that  the notification fixing  the maximum  selling prices  of various categories of  iron and steel including the black plain iron sheets being  a part  of the  Control Order  and a  piece of delegated legislation, it was not necessary to lay it before the Houses  of  Parliament.  It  was  also  pleaded  by  the respondent that the mensrea of the accused was manifest from various manipulations  resorted to  by them as also from the fact that  they wanted to increase their production and earn more profits.  The respondent also averred that launching of prosecution against  any person depended on the availability of sufficient  evidence  and  that  non-prosecution  of  the sellers of  the iron  sheets in question did not involve any discrimination  as   envisaged  by   Article   14   of   the Constitution but was due to non-availability of adequate and reliable evidence against them.      After careful consideration of the rival contentions of the parties,  the High  Court by  its elaborate judgment and order dated  May 31,  1974 dismissed the petition overruling the contentions of the appellants. One of the learned Judges of the  High Court  constituting the  Bench which dealt with the writ  petition also  observed that  the Notification  in question had  not in  reality been issued under section 3 of the Act  which required  it to be laid before both Houses of Parliament but was issued in exercise of the power conferred by section  4 of  the Act  which plainly related to issue of incidental orders  arising out  of the  nature of the powers conferred and  duties imposed  thereunder  and  the  purpose whereof was  to enable  the  various  authorities  mentioned therein to  provide the  details to  fill  up  gaps  in  the Control Orders  issued under  section 3  of the Act so as to ensure the  harmonious and  rational working  of the orders. The High  Court, however, being of the opinion that the case involved a substantial question of law relating to the vires of the  notification fixing  the maximum  selling prices  of various categories of iron and steel including the commodity in question  certified the  case as eminently fit for appeal to this Court. This is how the case is before us.      At the hearing of the appeal though the learned counsel for the  appellants  have  reiterated  all  the  contentions

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raised by  them in  the aforesaid  writ petition,  the  only substantial question  of law  with which we are concerned at the present  stage is  whether  the  aforesaid  notification fixing  the  maximum  selling  price  of  the  commodity  in question is void for not having been laid before both Houses of Parliament. 1076      For a  proper determination  of the aforesaid question, it is  necessary to notice a few provisions of the Act which are relevant for the purpose of the appeal.      Section 2 is a glossary of the Act. According to clause (a)(vi) of the said section, iron and steel and manufactured products thereof  fall within  the ambit  of the  expression "essential commodity".      Sub-section (1)  of section 3 of the Act confers on the Central Government  the general  power of making and issuing orders  providing   for  regulating   or   prohibiting   the production,  supply   and  distribution   of  an   essential commodity and trade and commerce therein if it is of opinion that it  is necessary  or expedient so to do for maintaining or increasing  supplies of  any essential  commodity or  for securing its equitable distribution and availability at fair prices or  for securing  any  essential  commodity  for  the defence of  India  or  the  efficient  conduct  of  military operations.      Sub-section (2)  of section  3 of the Act specifies the orders which  without prejudice  to the  generality  of  the powers conferred  by subsection  (1) of  section  3  can  be issued thereunder.      Clause (c)  of sub-section  (2) of section 3 of the Act authorities the  issue of an order for controlling the price at which any essential commodity may be bought or sold.      Sub-section (6)  of section  3 of  the Act ordains that every order made under this section by the Central or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be, after it is made.      Section 4 of the Act lays down that an order made under section 3  may confer  powers and  impose  duties  upon  the Central Government  or the  State Government or officers and authorities of  the Central  Government or  State Government and may  contain directions  to any  State Government  or to officers and  authorities thereof  as to the exercise of any such powers or the discharge of any such duties.      Section 5  of the  Act deals with delegation of powers. It provides  that the  Central Government  may, by  notified order, direct  that  the  power  to  make  orders  or  issue notifications under  section 3  shall, in  relation to  such matters and  subject to  such conditions,  if any, as may be specified in  the direction, be exercisable also by (a) such officer or  authority subordinate to the Central Government, or (b)  such State  Government or  such officer or authority subordinate to  a State  Government, as  may be specified in the direction.      Section 6  of the  Act which  embodies the non-obstante clause lays  down that  any order made under section 3 shall have effect  notwithstanding anything inconsistent therewith contained in any enactment 1077 other than  this Act  or any  instrument  having  effect  by virtue of any enactment other than this Act.      Section 7  of the Act lays down the penalties which any person contravening  any order  made under  section 3  shall entail.      Section 10  of the Act which deals with offences by the

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companies provides as follows:-           "10. (1)  If the person contravening an order made      under section  3 is a company, every person who, at the      time the contravention was committed, was in charge of,      and was  responsible to, the company for the conduct of      the business  of the  company as  well as  the company,      shall be  deemed to  be guilty of the contravention and      shall be  liable to  be proceeded  against and punished      accordingly :           Provided  that  nothing  contained  in  this  sub-      section shall  render any  such person  liable  to  any      punishment if  he proves  that the  contravention  took      place without  his knowledge  or that  he exercised all      due diligence to prevent such contravention.           (2) Notwithstanding  anything  contained  in  sub-      section (1),  where an  offence under this Act has been      committed by  a company  and  it  is  proved  that  the      offence  has   been  committed   with  the  consent  or      connivance of, or is attributable to any neglect on the      part of,  any director,  manager,  secretary  or  other      officer  of   the  company,   such  director,  manager,      secretary or  other officer  shall also be deemed to be      guilty of  that offence  and  shall  be  liable  to  be      proceeded against and punished accordingly.      Explanation. - For the purposes of this section, -           (a)  "company"   means  any  body  corporate,  and      includes a  firm or  other association  of individuals;      and           (b) "director"  in relation  to  a  firm  means  a      partner in the firm."      We may  also at  this stage advert to the Control Order which was  issued by  the  Central  Government  vide  S.R.O. 1109/ESS. COMM/  IRON  AND  STEEL  dated  May,  8,  1956  in exercise of  the powers  conferred on it by section 3 of the Act. Sub-clause  (1) of  clause 15 of this Order authorities the Controller  to fix  by notification  in the  Gazette  of India the maximum prices at which any iron and steel may 1078 be sold  (a) by a producer, (b) by a stockholder including a controlled stockholder  and (c)  by any  person or  class of persons. Sub  clause (3)  of clause  15 of the Control Order which is material for the purpose of the case provides:           "15. (3)  No  producer  or  stockholder  or  other      person shall sell or offer to sell, and no person shall      acquire, any  iron or  steel at  a price  exceeding the      maximum prices fixed under sub-clause (1) or (2)."      It was under sub-clause (1) of clause 15 of the Control Order that the notification in question was issued.      Though sub-section (6) of section 3 of the Act provides that every  order made  by the  Central Government or by any officer or authority of the Central Government shall be laid before both  Houses of Parliament as soon as may be after it is made, the important point to be considered in the absence of analogous  statutes like  the Statutory  Instruments Act, 1946  and   the  Laying   of  Documents   before  Parliament (Interpretation) Act,  1948 prescribing  the conditions, the period and  the legal  effect of  the laying of order before the Parliament  is whether  the provision  is  directory  or mandatory. It is well to remember at the outset that the use of the  word ‘shall’  is not  conclusive and decisive of the matter and  the Court has to ascertain the true intention of the legislature,  which is  the determining factor, and that must be done by looking carefully to the whole scope, nature and design  of the statute. Reference in this connection may be made  to the  decision of  this Court in State of U.P. v.

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Manbodhan Lal Srivastava. ‘Reference in this behalf may also be made  with advantage to another decision of this Court in The State  of Uttar  Pradesh &  Ors. v.  Babu Ram Upadhya(2) where Subba  Rao, J.  (as he  then was)  after quoting  with approval the  passage occurring  at page 516 in Crawford "On the  Construction  of  Statutes"  as  well  as  the  passage occurring at  page 242  in  ‘Craies  on  Statute  Law’,  5th Edition, observed as follows :-      "The relevant  rules of  interpretation may  be briefly      stated thus:  When a  statute uses  the  word  "shall",      prima  facie,  it  is  mandatory,  but  the  Court  may      ascertain the  real intention  of  the  legislature  by      carefully attending  to the whole scope of the statute.      For ascertaining the real intention of the Legislature,      the Court  may consider, inter alia, the nature and the      design of the statute, and the consequences which would      follow from constituting it one way or the other, 1079      the impact of other provisions whereby the necessity of      complying with  the provisions  in question is avoided,      the circumstances,  namely, that  the statute  provides      for  a  contingency  of  the  non-compliance  with  the      provisions, the  fact that  the non-compliance with the      provisions is  or is  not visited  by some penalty, the      serious or  trivial consequences  that flow  therefrom,      and, above  all, whether  the object of the legislation      will be defeated or furthered."      Thus two  considerations for  regarding a  provision as directory are  :  (1)  absence  of  any  provision  for  the contingency of  a particular  provision not  being  complied with or  followed and  (2) serious general inconvenience and prejudice that would result to the general public if the act of the  Government or an instrumentality is declared invalid for non-compliance with the particular provision.      Now the  policy and  object underlying  the  provisions relating to  laying the  delegated legislation  made by  the subordinate law  making  authorities  or  orders  passed  by subordinate executive  instrumentalities before  both Houses of Parliament being to keep supervision and control over the aforesaid authorities  and  instrumentalities,  the  "laying clauses" assume  different forms  depending on the degree of control which  the legislature  may  like  to  exercise.  As evident from  the observations  made at  pages 305 to 307 of the 7th  Edition of  Craies on  Statute Law and noticed with approval in  Hukam Chand  etc. v.  Union of  India & Ors.(1) there are  three kinds of laying which are generally used by the Legislature.  These three  kinds of laying are described and dealt with in Craies on Statute Law (Supra) as under.-           (i)  Laying without further procedure,           (ii) Laying subject to negative resolution,          (iii) Laying subject to affirmative resolution.           (i)  Simple laying. The most obvious example is in                section 10(2)  of the  1946 Act.  In  earlier                days, before  the idea of laying in draft had                been introduced,  there was  a provision  for                laying rules  etc., for a period during which                time they  were not in operation and could be                thrown out  without  ever  having  come  into                operation  (compare  Merchant  Shipping  Act,                1894, s. 417; Inebriates Act 1898, s. 21) but                this is not used now. 1080           (ii) Negative resolution. Instruments so laid have                immediate operative effect but are subject to                annulment within forty days without prejudice

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              to  a   new  instrument   being   made.   The                phraseology generally  used  is  "subject  to                annulment in  pursuance of  a  resolution  of                either House  of Parliament."  This is by far                the commonest  form of laying. It acts mostly                as  a   deterrent  and   sometimes  forces  a                Minister (in Sir Cecil Carr’s phrase) to "buy                off    opposition"    by    proposing    some                modification.           (iii) Affirmative resolution. The phraseology here                is normally  "no order shall be made unless a                draft has been laid before Parliament and has                been approved  by a  resolution of each House                of Parliament.  Normally, no  time  limit  is                fixed  for   obtaining   approval   none   is                necessary   because   the   Government   will                naturally take  the earliest  opportunity  of                bringing it  up for  approval -  but  section                16(3)   of   the   Housing   (Financial   and                Miscellaneous  Provisions)   Act,  1946   did                impose a  limit of  forty days.  An old  form                (not much  used  nowadays)  provided  for  an                order to  be made but not to become operative                until  a   resolution  of   both  Houses   of                Parliament had  been obtained.  This form was                used in  section 10(4)  of the  Road  Traffic                Act, 1930  (cf. Road  Traffic Act, 1960, s.19                (3) .  ..The affirmative resolution procedure                necessitates a  debate in  every  case.  This                means  that   one  object  of  delegation  of                legislation  (viz.   saving   the   time   of                Parliament) is  to some  extent defeated. The                procedure therefore  is sparingly used and is                more or  less reserved  to  cases  where  the                order almost  amounts to an Act, by effecting                changes which approximate to true legislation                (e.g. where  the order  is the  meat  of  the                matter, the enabling Act merely outlining the                general purpose)  or where the order replaces                local Acts  or provisional  orders and,  most                important of all, where the spending, etc. of                public money is affected.                Sometimes where  speedy or  secret action  is                required  (e.g.   the  imposition  of  import                duties), the  order is  laid  with  immediate                operation but  has to  be confirmed  within a                certain period of Import Duties Act, 1958, 1081                s.13(4). This  process of  acting  first  and                getting approval  after has also been adopted                in the Emergency Powers Act, 1920 under which                a state  of emergency  can be  proclaimed and                regulations made.  The proclamation  must  be                immediately communicated  to  Parliament  and                does not have effect for longer than a month:                but   it   can   be   replaced   by   another                proclamation. Any  regulations made under the                proclamation are to be laid before Parliament                immediately and  do  not  continue  in  force                after the  expiration of  seven days from the                time  when   they  are   so  laid   unless  a                resolution is passed by both Houses providing                for their continuance."      Now at  page 317  of the aforesaid Edition of Craies on Statute Law,  the questions whether the direction to lay the

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rules before Parliament is mandatory or merely directory and whether laying  is a  condition precedent to their operation or may  be neglected  without prejudice to the effect of the rules are  answered by saying that "each case must depend on its own  circumstances or  the wording  of the statute under which the  rules are made." In the instant case, it would be noticed that  sub-section(6) of  section 3 of the Act merely provides that  every order  made  under  section  3  by  the Central Government  or by  any officer  or authority  of the Central Government  shall be  laid  before  both  Houses  of Parliament, as soon as may be, after it is made. It does not provide that  it shall  be subject  to the  negative or  the affirmative resolution  by either  House of  Parliament.  It also  does  not  provide  that  it  shall  be  open  to  the Parliament to  approve or  disapprove the  order made  under section 3  of the Act. It does not even say that it shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide. It does not even specify  the period  for which  the order is to be laid before both  Houses of  Parliament nor  does it  provide any penalty for  non-observance of  or non-compliance  with  the direction as  to the  laying of the order before both Houses of Parliament. It would also be noticed that the requirement as to  the  laying  of  the  order  before  both  Houses  of Parliament is  not a  condition precedent  but subsequent to the making  of the  order.  In  other  words,  there  is  no prohibition to the making of the orders without the approval of both Houses of Parliament. In these circumstances, we are clearly of  the view  that  the  requirement  as  to  laying contained in  sub-section (6)  of section 3 of the Act falls within the first category i.e. "simple laying" and 1082 is directory not mandatory. We are fortified in this view by a catena of decisions, both English and Indian. In Bailey v. Williamson(1) whereby  section 9  of the  Parks  Regulations Act, 1872  passed on  June 27,  1872 "to  protect the  royal parks  from  injury,  and  to  protect  the  public  in  the enjoyment of  those royal  parks and other royal possessions for the  purpose of innocent recreation and exercise" it was provided that  any rules  made in  pursuance  of  the  first schedule to  the Act  shall be  forthwith laid  before  both Houses of  Parliament, if  Parliament be sitting, or if not, then within three weeks after the beginning of the then next ensuing session  of Parliament;  and if any such rules shall be disapproved  by either  House of  Parliament  within  one month of  the laying,  such rules,  or such parts thereof as shall be  disapproved shall  not be  enforced and  Rules for Hyde Park were made and published on September 30, 1872 when Parliament was  not sitting  and in  November 18,  1872, the appellant was  convicted under section 4 of the Act for that he did  unlawfully act  in  contravention  of  Regulation  8 contained  in   the  first   schedule  annexed   thereto  by delivering a public address not in accordance with the rules of the  said Park  but contrary  to the  statute, and it was inter alia  contended on  his behalf  that in the absence of distinct words  in the  statute stating that the rules would be operative in the interval from the time they were made to the time  when Parliament  should meet next or if Parliament was sitting  then during  the month  during which Parliament had an  opportunity of  expressing its opinion upon them, no rule made  as supplementing  the schedule could be operative so as  to  render  a  person  liable  to  be  convicted  for infraction thereof  unless the same had been laid before the Parliament, it  was held  overruling the contention that the Rules became  effective from  the time they were made and it

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could not  be the  intention of  the  Legislature  that  the laying of  the rules  before Parliament  should  be  made  a condition precedent  to their  acquiring validity  and  that they should  not take  effect until they are laid before and approved by  Parliament. If the Legislature had intended the same thing  as in  section 4, that the rules should not take effect until  they had  the sanction  of the  Parliament, it would have expressly said so by employing negative language.      In Starey  v. Graham(2) where it was contended that the Register  of  Patent  Agents  Rules,  1889  which  had  been repealed by  Rules of  1890 could  not be re-enacted by mere reference without  complying with  the provisions of section 101, sub-s. 4 of 46 and 47 Vict. c. 57 according to which, a copy of the Rules of 1889 should also have been 1083 laid before  both Houses of Parliament in order to make them valid, Channell, J. said :      "I somewhat doubt whether the provisions of section 101      are more  than directory and whether it is necessary in      any particular  case where  reliance is  placed on such      rules to  prove that  in fact  its provisions  had been      complied with."      In Jan  Mohammad Noor  Mohammad Bagban  v. The State of Gujarat &  Anr.(1) where it was urged by the petitioner that the rules  framed by  the Provincial  Government in  1941 in exercise of  the powers  conferred on it under section 26(1) of the  Bombay Agricultural Produce Markets Act (22 of 1939) had no  legal validity  as they were not laid before each of the Houses  of the  Provincial Legislature  at  the  session thereof next  following as  provided by  sub-section (5)  of section 26  of the  Act, this  Court rejected the contention and upheld  the validity  of the  said rules.  The following observations made  in that case by Shah, J. (as he then was) on behalf of the Constitution Bench are apposite:-           "The rules under Act 22 of 1939 were framed by the      Provincial Government  of Bombay  in 1941. At that time      there was  no Legislature  in session,  the Legislature      having been  suspended during the emergency arising out      of World  War II. The session of the Bombay Legislative      Assembly was  convened for the first time after 1941 on      May 20,  1946 and that session was prorogued on May 24,      1946. The  second session  of  the  Bombay  Legislative      Assembly was  convened on July 15, 1946 and that of the      Bombay Legislative Council on September 3, 1946 and the      rules were  placed on  the Assembly Table in the second      session before the Legislative Assembly on September 1,      1946 and  before the  Legislative Council  on September      13, 1946.  Section 26(5)  of Bombay Act 22 of 1939 does      not prescribe  that the  rules acquired  validity  only      from the  date on  which they  were placed  before  the      Houses of  Legislature. The  rules are  valid from  the      date on  which they are made under s. 26(1). It is true      that the  Legislature has  prescribed  that  the  rules      shall be  placed before  the Houses of Legislature, but      failure to place the rules before Houses of Legislature      does affect  the validity  of the rules, merely because      they have  not been  placed before  the Houses  of  the      Legislature. Granting that the provisions of sub-s. (5)      of S.  26 by  reason of  the failure to place the rules      before the Houses of Legislature were 1084      violated, we  are of  the view that Sub-s. (5) of S. 26      having regard to the purposes for which it is made, and      in the  context in  which it occurs, cannot be regarded      as mandatory.  (Emphasis supplied). The rules have been

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    in operation since the year 1941 and by virtue of s. 64      of the  Gujarat Act  20 of 1964 they continue to remain      in operation.      In D.  K. Krishnan  v.  Secretary,  Regional  Transport Authority, Chittor(1) where the validity of Rule 13-A of the Madras Motor  Vehicles Rules,  1940, made  under  the  Motor Vehicles  Act,   1939  empowering   the  Regional  Transport Authority to  delegate its  functions to  the Secretary  was challenged on  the ground  that it  was not  laid before the Legislature of  the Madras  State  as  required  by  section 133(3) of  the Act  which provided  that the  rules shall be laid for  not less than fourteen days before the Legislature as soon as possible after they are made and shall be subject to such  modification as  Parliament or such Legislature may make during  the session  in which  they are  so laid, Sabba Rao, J.  (as he  then was) after an exhaustive review of the case law and the text books on constitutional law by eminent jurists repelled the contention observing as follows :-           "The aforesaid  discussion in  the text  books and      the case  law indicate  the various  methods adopted by      the Parliament  or  legislature  to  control  delegated      legislation. That  control is  sought to be effected by      directing  the   rules  or   regulations  made  by  the      delegated authority to be laid before the Parliament.           Where the  statute makes  the laying  of the rules      before  Parliament   a  condition   precedent  or   the      resolution of  the Parliament  a condition  subsequent,      there is  no difficulty as in the former case, the rule      has no  legal force at all till the condition precedent      is complied  with and  in the latter case, it ceases to      have force  from the  date of  non-compliance with  the      condition subsequent.           Nor can  there be  any difficulty  in a case where      the Parliament  or the Legislature, as the case may be,      specifically  prescribes   the  legal  effect  of  non-      compliance with  that  condition.  But  more  important      question arises  when the Parliament directs the laying      of the  rules before  the Parliament  without providing      for the consequences of non-compliance with the rule. 1085           In the  case of  a statute  directing rules  to be      laid before  the Parliament  or the Legislature without      any condition  attached, the  rule is  only  directory.      Though the  statute says  that the  rules shall be laid      before the  Parliament as  the provision in the statute      is conceived  in public  interests, the  dereliction of      the duty  by the Minister or other officer concerned in      not following  the procedure  should  not  be  made  to      affect the members of the public governed by the rules.           It may be asked and legitimately too that when the      Parliament  to   keep  its   control   over   delegated      legislation directs that the rules shall be laid before      the  Parliament  and  if  that  rule  is  construed  as      directory, the object itself would be defeated. But the      Parliament or  the Legislature,  as the  case may be if      they intended  to make  that rule mandatory, they would      have clearly  mentioned the  legal consequences  of its      non-compliance as they have done in other cases.           This rule  (i.e.  the  one  contained  in  Section      133(3)  therefore,  is  not  made  either  a  condition      precedent or  a condition subsequent to the coming into      force of  the  rules.  It  does  not  provide  for  any      affirmative resolution.  The role  continues to  be  in      force till it is modified by the Parliament.           If sub-section  (3) is  only directory, in view of

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    the opinion  expressed by  us, it  is clear from a fair      reading of the words used in the section that the rules      made under  the section  came into  effect  immediately      they were  published and  they continued to be in force      because it  is not suggested that they were modified by      the Legislature.  We, therefore,  hold that the rule in      question is valid."      In State v. Karna(1) where the very question with which we  are   concerned  in  the  present  case  cropped  up  in connection with  the Rajasthan  Foodgrains (Restrictions  on Border Movement)  Order, 1959,  a bench  of  Rajasthan  High Court said as follows:-      "It is  important to  note that laying the Order before      both the  Houses  of  Parliament  is  not  a  condition      precedent for  bringing into  force the Order. All that      sub-section (6) provides is that every Order made under      sec. 3  of the Essential Commodities Act by the Central      Government or  by  any  officer  or  authority  of  the      Central Government shall be laid before both the Houses      of Parliament  as soon  as after  it  is  made.  It  is      significant that 1086      the Order  is valid  and effective  from the date it is      duly promulgated. Even the limit or period within which      it must  be placed  before the  Parliament has not been      specified. It  is, therefore, not possible to hold that      sub-sec. (6) of sec. 3 of the Essential Commodities Act      is mandatory. If the legislature intended that in order      to provide  an adequate  safeguard it  was necessary to      make the said provision mandatory it could have done so      in express  words. We  are, therefore,  of the  opinion      that the  order cannot  be considered as invalid merely      because the  State was  not able to put on record proof      of the  fact that  the Order  was laid  before both the      Houses of Parliament."      In Mathura  Prasad Yadava  v. Inspector  General,  Rly. Protection Force,  Railway Board,  New Delhi & Ors.(1) where it  was   contended  that   Regulation  14  of  the  Railway Protection Force  Regulations, 1966 made under section 21 of the Railway Protection Force Act (23 of 1957) was invalid as it was not laid before both Houses of Parliament as required by sub-section (3) of section 21 of the Act, it was held:           "What then  is the  consequence of  failure to lay      the regulation  ?......A correct  construction  of  any      particular laying clause depends upon its own terms. If      a laying  clause defers  the coming  into force  of the      rules until  they are  laid, the rules do not come into      force before  laying and  the requirement  of laying is      obligatory  to   make  the   rule  operative.   So  the      requirement of laying in a laying clause which requires      an affirmative  procedure will  be held to be mandatory      for making  the rules operative, because, in such cases      the rules  do  not  come  into  force  until  they  are      approved, whether  with  or  without  modification,  by      Parliament. But  in  case  of  a  laying  clause  which      requires a  negative procedure the coming into force of      the rules is not deferred and the rules come into force      immediately they  are made.  The  effect  of  a  laying      clause of  this variety  is  that  the  rules  continue      subject to  any modification that Parliament may choose      to make  when they  are  laid;  but  the  rules  remain      operative until  they are  so modified.  Laying clauses      requiring  a   negative   procedure   are,   therefore,      construed  as  directory.  The  matter  is  put  beyond      controversy by the decision of the Supreme Court in Jan

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    Mohd. v.  State of  Gujarat  (supra).  Our  conclusion,      therefore, is  that the  laying requirement  enacted in      section 21(3)  of  the  Act  is  merely  directory.  It      logically follows that failure to lay Regulation 1087      14 has no effect on its validity and it continues to be      effective and operative from the date it was made."      Relying on  the decision in D. K. Krishnan v. Secretary Regional Transport  Authority, Chittoor  (supra), Grover, J. speaking for  the bench in Krishna Khanna & Anr. v. State of Punjab(1) said  that sub-section  (6) of  section 3  of  the Essential Commodities  Act, 1955  was merely  of a directory nature and its non-compliance did not render the Punjab Coal Control Order, 1955 invalid or void.      Metcalfe  &   Ors.  v.   Cox  &   Ors.  (2)  where  the Commissioners (charged  with the  duty of  making provisions for   improving    the   administration   of   the   Scotish Universities) assuming  to act under powers of section 16 of the Universities (Scotland) Act, 1889 executed an instrument in writing  declaring  that  they  had  affiliated  and  did thereby affiliate  the University  College of  Dundee to and make it form part of the University of St. Andrews which was treated as an ordinance and held to be invalid on the ground that it  had not  been laid before Parliament is not helpful to the  appellants, as the decision in that case turned upon the construction  of the  language of section 20 of the said Act  which   provided  that   all  ordinances  made  by  the Commissioners are  to be published in the Edinburgh Gazette, laid before  Parliament and  submitted to  Her Majesty,  the Queen for  approval and no such ordinance shall be effectual until  it   shall  have   been  so  published,  laid  before Parliament and approved by Her Majesty in Council.      The decision  of this Court in Narendra Kumar & Ors. v. The Union  of India  & Ors.(3)  on  which  counsel  for  the appellants have  heavily leaned  is clearly distinguishable. In that  case, the Non-ferrous Metal Control Order, 1958 was held to  be invalid  essentially  on  the  ground  that  the principles specified by the Central Government in accordance with clause  4 of  the Order  were not  published either  on April 2,  1958 on  which the  order  was  published  in  the Government Gazette  or any  other date.  It would be noticed that while  considering the effect of non publication of the aforesaid principles  which formed  an integral  part of the order by  which alone  the Central Government could regulate the distribution and supply of the essential commodities, it was only  incidentally that  a mention was made by the Court to the  effect that  the principles had not been laid before both Houses of Parliament.      Likewise  the   decisions  of  this  Court  in  Express Newspapers (Private)  Ltd. &  Anr. v.  The Union  of India & Ors(4) and in re: The 1088 Kerala Education  Bill 1957  (1959 S.C.R.  995: A.I.R.  1958 S.C. 956)  are also not helpful to the appellants. The point involved in  the present  case was  not directly in issue in those cases  and the  observations made therein about laying were merely incidental.      From the  foregoing discussion,  it inevitably  follows that the Legislature never intended that non-compliance with the requirement of laying as envisaged by sub-section (6) of section  3   of  the  Act  should  render  the  order  void. Consequently non-laying of the aforesaid notification fixing the maximum selling prices of various categories of iron and steel including the commodity in question before both Houses of  Parliament   cannot  result   in  nullification  of  the

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notification. Accordingly,  we answer the aforesaid question in the negative. In view of this answer, it is not necessary to deal  with the  other contention raised by the respondent to the  effect that  the aforesaid  notification being  of a subsidiary character,  it was not necessary to lay it before both Houses of Parliament to make it valid.      In the result, the appeal fails and is dismissed. N.V.K.                                     Appeal dismissed. 1089