The State v. Rashid And Others, Madhya Pradesh High Court, Judgment, Law, casemine.com

Factual and Procedural Background

Source facts and procedural posture are stated exactly as presented in the opinion.

This is a reference made under Section 432(1) of the Criminal Procedure Code from the Subordinate Judge-Magistrate, 1st Class, Bhopal. The reference arose in the course of the trial of four persons (the non-applicants) who were prosecuted for an offence under Section 10 of the Bhopal Cattle Slaughter (Restrictions) Ordinance, 1949. The single question referred to the higher court was whether the Bhopal Cattle Slaughter (Restrictions) Ordinance, 1949, promulgated on 13-12-1949 by the Chief Commissioner, Bhopal, was intra vires (within the legal powers of) the Chief Commissioner.

The learned Magistrate who made the reference expressed the view that the Ordinance was not intra vires because:

the Ordinance contained nothing to indicate that it was necessitated by any emergency; and

the Ordinance did not indicate that it was made and promulgated for the peace and good government of the Bhopal State or part thereof, as required under Section 12 of the Bhopal Legislative Council Act, 1922 (as amended by Act I of 1940), the statutory provision under which the Ordinance was made.

Legal Issues Presented

Whether the Bhopal Cattle Slaughter (Restrictions) Ordinance, 1949, promulgated by the Chief Commissioner, Bhopal, is intra vires the powers of the Chief Commissioner.

Whether an Ordinance made under the power in the relevant provision (Section 12, Bhopal Legislative Council Act, 1922, as amended) must in its text state that it was necessitated by an emergency and that it was made for the peace and good government of the State or whether those facts may be presumed from the fact of promulgation under the statutory power.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bharat Pictures v. State of Bhopal, Misc. Civil Appln. No.9 of 1950, Dated 17-2-1951 (A)	Held, in relation to the Bhopal Premises (Requisition and Eviction) Ordinance (30 of 1949), that the Ordinance was not ultra vires; the question and the legal provisions were very fully discussed (pages 11–23 of that order).	The Court recorded that the learned Additional Judicial Commissioner (Shri Tribeni Saran) had held that the similar ordinance was not ultra vires and had treated the situation as an "anomaly" rather than repugnancy. The present court referred to that decision as background but expressly disagreed with the conclusion insofar as it treated the position as non-repugnant.
Mrinal Kanti Ghose, AIR 1932 Cal 738 (Special Bench)	Principle: The validity of an Ordinance depends on the judgment of the Governor-General (or relevant executive authority) that immediate action was necessary; validity does not rest on proof of an emergency or on a recital of emergency in the Ordinance.	The Court relied on this authority to conclude that, if the Ordinance had otherwise been intra vires, it would not have been required to state in its text the existence of an emergency or the words “for the peace and good government”; those ingredients may be presumed from promulgation under a power thought to confer authority to make Ordinances.
U Lun v. U Chit Hlaing, AIR 1941 Rang 49 (C)	Principle: Where an Ordinance is expressed to be issued under powers conferred by the relevant section (S.42, Government of Burma Act, 1935 in that case), it is implied that an opinion has been formed by the Governor and that an individual judgment has been exercised by him.	The Court invoked this principle to support the proposition that the existence of an emergency or the opinion required by the statutory power is implied from promulgation and need not be set out in the Ordinance itself.
Emperor v. Benoari Lal Sarma, AIR 1945 PC 48 (D)	Principle: Section 72 of Schedule IX of the Government of India Act, 1935, does not require the Governor-General to state that an emergency exists or to state what the emergency is; assuming bona fides and statutory conformity, the courts should not challenge the Governor-General's view that an emergency exists.	The Court relied on this precedent to reinforce that the courts cannot ordinarily challenge the executive's bona fide judgment as to the existence of an emergency and that an Ordinance need not recite the emergency in its text.

Precedent

Rule or Principle Cited For

Application by the Court

Bharat Pictures v. State of Bhopal, Misc. Civil Appln. No.9 of 1950, Dated 17-2-1951 (A)

Held, in relation to the Bhopal Premises (Requisition and Eviction) Ordinance (30 of 1949), that the Ordinance was not ultra vires; the question and the legal provisions were very fully discussed (pages 11–23 of that order).

The Court recorded that the learned Additional Judicial Commissioner (Shri Tribeni Saran) had held that the similar ordinance was not ultra vires and had treated the situation as an "anomaly" rather than repugnancy. The present court referred to that decision as background but expressly disagreed with the conclusion insofar as it treated the position as non-repugnant.

Mrinal Kanti Ghose, AIR 1932 Cal 738 (Special Bench)

Principle: The validity of an Ordinance depends on the judgment of the Governor-General (or relevant executive authority) that immediate action was necessary; validity does not rest on proof of an emergency or on a recital of emergency in the Ordinance.

The Court relied on this authority to conclude that, if the Ordinance had otherwise been intra vires, it would not have been required to state in its text the existence of an emergency or the words “for the peace and good government”; those ingredients may be presumed from promulgation under a power thought to confer authority to make Ordinances.

U Lun v. U Chit Hlaing, AIR 1941 Rang 49 (C)

Principle: Where an Ordinance is expressed to be issued under powers conferred by the relevant section (S.42, Government of Burma Act, 1935 in that case), it is implied that an opinion has been formed by the Governor and that an individual judgment has been exercised by him.

The Court invoked this principle to support the proposition that the existence of an emergency or the opinion required by the statutory power is implied from promulgation and need not be set out in the Ordinance itself.

Emperor v. Benoari Lal Sarma, AIR 1945 PC 48 (D)

Principle: Section 72 of Schedule IX of the Government of India Act, 1935, does not require the Governor-General to state that an emergency exists or to state what the emergency is; assuming bona fides and statutory conformity, the courts should not challenge the Governor-General's view that an emergency exists.

The Court relied on this precedent to reinforce that the courts cannot ordinarily challenge the executive's bona fide judgment as to the existence of an emergency and that an Ordinance need not recite the emergency in its text.

Court's Reasoning and Analysis

This section follows the court's step-by-step legal analysis as contained in the opinion.

Statutory and historical framework:

Before merger with the Indian Union, His Highness the Nawab of Bhopal possessed ordinance-making power under Section 12 of the Bhopal Legislative Council Act, 1922 (as amended by Act I of 1940), to make Ordinances in cases of emergency for the peace and good government of the State; such Ordinances had the force of law until repealed by the Nawab.
The Indian Independence Act, 1947, created India and Pakistan and provided that Indian States could accede to either Dominion. Bhopal acceded to India in August 1947.
To enable Central administration of acceding States, Parliament enacted the Extra-Provincial Jurisdiction Act (47 of 1947), under which the Government of India issued the Bhopal Administration Order, 1949; that Order (effective 1-6-1949) continued existing laws and vested powers previously exercisable by the Nawab in the Chief Commissioner, thereby appearing to give the Chief Commissioner ordinance-making authority under the prior local enactments.
The Constituent Assembly amended the Government of India Act, 1935, adding Section 290A; under that power the Governor-General passed the States Merger (Chief Commissioners Provinces) Order, 1949 which made Bhopal a Chief Commissioners Province effective 1-8-1949 and expressly continued prior laws and Orders.

Conflict of powers and repugnancy analysis:

The court observed that powers given to the Chief Commissioner under the Bhopal Administration Order ceased to the extent they conflicted with the position assigned by Section 290A of the Government of India Act once Bhopal became a Chief Commissioners Province.
Section 290A(2) placed Chief Commissioners of such provinces in the same position as the Chief Commissioner of Delhi so far as provisions of the Government of India Act were applicable. Under the Government of India Act (as adapted), the Governor-General (not the Chief Commissioner) had the power to make Ordinances (Section 42 as applied and Section 94(3) framework), and any law purporting to confer ordinance-making power on a Chief Commissioner was repugnant to these provisions.
The court therefore concluded that the Bhopal Legislative Council Act (Section 12), insofar as it was read as conferring ordinance-making power on the Chief Commissioner after the States Merger Order, was repugnant to the Government of India Act provisions that reserved ordinance-making power to the Governor-General. Because of this repugnancy, the Ordinance promulgated by the Chief Commissioner was ultra vires.

On the magistrate's specific contention about recitals:

The court reviewed authorities (Mrinal Kanti Ghose; U Lun v. U Chit Hlaing; Emperor v. Benoari Lal Sarma) and accepted their principle that an Ordinance's validity does not depend on proof of an emergency being set out in the Ordinance's text; if promulgated under the relevant statutory power, the necessary judgment or opinion that an emergency existed may be presumed.
Accordingly, the court held that the Magistrate's technical grounds (that the Ordinance did not state it was necessitated by emergency or for peace and good government) would not, standing alone, render a validly enacted Ordinance invalid.

Resolution of the central question:

Despite accepting that recitals are not required, the court concluded that the Ordinance was nonetheless invalid because the Chief Commissioner did not possess the statutory competence to make Ordinances after Bhopal became a Chief Commissioners Province under the Government of India Act; the Ordinance was therefore ultra vires the powers of the Chief Commissioner.

Holding and Implications

Holding: The Bhopal Cattle Slaughter (Restrictions) Ordinance, 1949, promulgated by the Chief Commissioner, Bhopal, is ultra vires of the powers of the Chief Commissioner and therefore invalid.

Implications:

Direct effect: The Ordinance is held to be invalid because the power to make such an Ordinance did not reside in the Chief Commissioner after the State of Bhopal became a Chief Commissioners Province under the Government of India Act. (The court answered the reference accordingly.)

Scope of doctrinal holdings: The opinion reiterates established authorities that an executive Ordinance need not recite an emergency in its text and that the existence of requisite executive judgment may be presumed from promulgation under the statutory power; however, the court's ultimate ruling turned on a statutory repugnancy and competence analysis, not on the presence or absence of recitals.

No broader ramifications were pronounced in terms of establishing a novel legal doctrine beyond the application of the existing precedents and the repugnancy analysis set out above. The opinion does not state that it is laying down any new precedent beyond resolving the referred question.

Answer to the reference: The Ordinance is ultra vires and invalid. "Answer accordingly."

The State v. Rashid And Others

Judgement

:- This is a reference under S.432(1), Cr.P.C., from the Subordinate Judge-Magistrate, 1st class, Bhopal. The question referred is:

"Whether the Bhopal Cattle Slaughter (Restrictions) Ordinance, 1949, is intra vires of the Chief Commissioner, Bhopal?"

2. The question arose in a trial of four persons, the non-applicants, for an offence under S.10 of the Ordinance. The learned Magistrate is of the view that it is not intra vires of the Chief Commissioner inasmuch as there is nothing in the Ordinance to indicate (a) that it was necessitated by any emergency, and (b) that it was made and promulgated for the peace and good Government of the Bhopal State or part thereof, as required under S.12, Bhopal Legislative Council Act, 1922, as amended by such act (no.1 of 1940), under which it was made and promulgated by the Chief Commissioner.

3. The Bhopal Cattle Slaughter (Restrictions) Ordinance, 1949, was promulgated by the Chief Commissioner, Bhopal, on 13-12-1949. A similar question in respect of the Bhopal Premises (Requisition and Eviction) Ordinance (30 of 1949) promulgated by the Chief Commissioner on 30-8-1949, arose for consideration and decision by Shri Tribeni Saran, Additional Judicial Commissioner of this Court in - Bharat Pictures v. State of Bhopal, Misc. Civil Appln. No.9 of 1950, D/-17-2-1951 (Bhopal) (A), and the question has been very elaborately discussed with reference to the provisions of all the relevants laws, at pages 11 to 23 of the order. The learned A.J.C. held that the said Ordinance was not ultra vires.

4. The discussion of the law at the above pages has been very ably summarised by the learned Govt. Advocate in this Court. It runs as follows:

(a) Before the State of Bhopal merged in the Indian Union, His Highness the Nawab of Bhopal had, under S.12, Bhopal Legislative Council Act (4 of 1922), as amended by Act I of 1940, power to make and promulgate Ordinances in cases of emergency for the peace and good government of the State or part thereof and such Ordinances had the force of law until repealed by an order of His Highness the Nawab published in the Bhopal Gazette.

(b) The Indian Independence Act, 1947, came into force on 15-8-1947 and under S.2 of the Act, two dominions were constituted, namely, India and Pakistan, of the territories formerly known as the British India, but under sub-s. (4) of the section, the Indian States were free to accede to any of the two dominions. His Highness the Nawab of Bhopal acceded to the dominion of India on 14-8-i947, and this accession was accepted by the Governor General on 16-8-1947.

(c) In view of a large number of Indian States acceding to the Dominion of India in the similar manner, a law, by which the administration of such States could be taken over, was passed, namely, the Extra-Provincial Jurisdiction Act (47 of 1947), under S.4 of which the Central Government was empowered to make Orders by notification in the official Gazette for the effective exercise of such jurisdiction of the Central Government. On the strength of the above Act the Government of India passed the Bhopal Administration Order, 1949, whereby the State of Bhopal was to be administered by the Central Government through a Chief Commissioner. Under clause (5) of the Order, all laws in force in Bhopal State or any part thereof immediately before the commencement of this Order were continued to be in force until repealed or amended by competent Legislature or authority and it was also provided that all powers exercisable under the said laws by His Highness the Nawab, or the Government of the State, shall be exercisable by the Chief Commissioner.

Thus, when the State of Bhopal began to be administered as a Chief Commissioners Province with effect from 1-6-1949, the Chief Commissioner was given all such powers as were being exercised by His Highness the Nawab and as such, the Chief Commissioner had the power to make and promulgate Ordinances for the peace and good government of the State or part thereof.

(d) In the meantime, the Government of India Act, 1935, was amended by the Constituent Assembly, by act 1 of 1949, whereby s.290a was added in the Government of India Act. This section empowered the Governor General to pass an order directing that a particular State shall be administered in all respects as if the State was a Chief Commissioners Province.

In pursuance of this power under this section (S.290A), the Governor General passed the States Merger (Chief Commissioners Provinces) Order, 1949, and hence the Bhopal State was created a Chief Commissioners Province with effect from 1-8-1949. By Cl.4 of this Order all the laws in force in the new Province immediately before 1-8-1949, including the Orders made under the Extra-Provincial Jurisdiction Act (47 of 1947) were expressly made to continue and, therefore, the power to make and promulgate Ordinances, conferred upon the Chief Commissioner under Cl.5 of the Bhopal Administration Order, read with S.12, Bhopal Legislative Council Act of 1922, as amended by Act 1 of 1940, was again reserved to the Chief Commissioner by Cl.4 of the States Merger (Chief Commissioners Provinces) Order, 1949, and hence even after the State of Bhopal began to be administered as a Chief Commissioners Province, the Chief Commissioner had the power to make and promulgate Ordinances.

5. It must, however, appear that whatever powers the Chief Commissioner may have had under the Bhopal Administration Order, 1949, issued under Ss.3 and 4 of the Extra-Provincial Jurisdiction Act of 1947, they ceased and terminated as soon as the Bhopal State became a Chief Commissioners Province under S.290A, Government of India Act. Clause (2) of S.290A of the above Act clearly lays down that upon the issue of an Order under cl.(a) of sub-s. (1) of S.290A, all the provisions of this Act (the Government of India Act) applicable to the Chief Commissioners Province of Delhi shall apply to the State in respect of which the Order is made. Now under cl.(3) of S.94, Government of India Act, a Chief Commissioners Province shall be administered by the Governor General acting, to such extent as he thinks fit, through a Chief Commissioner to be appointed by him in his discretion. Again, under S.42, Government of India Act, as adapted by the India (Provisional Constitution) Order, 1947, the Governor General alone had the power to make Ordinances and that too only for six months.

In any case, the Chief Commissioners Province being a creature of the Government of India Act, any power conferred upon the Chief Commissioner to pass Ordinances was repugnant to the provisions laid down in Ss.42 and 94(3), Government of India Act, as also to S.290A(1)(a), Government of India Act. To be brief, it may be pointed out that since 1-8-1949, the Chief Commissioner of Bhopal had the same powers in the matter of making and promulgating Ordinances as the Chief Commissioner of Delhi, and as this latter Chief Commissioner had no such power to make and promulgate Ordinances for the State of Delhi, the Chief Commissioner of Bhopal also did not have any such power. It may be further pointed out that in so far as the State of Delhi was concerned, it was the Governor General alone who, under S.42, Government of India Act, as amended by the India (Provisional Constitution) Order, 1947, had the power to make and promulgate Ordinances and the law conferring such power upon the Chief Commissioner to pass Ordinances being in conflict with the provisions of S.42, Government of India Act, must be held to be repugnant to the said section.

6. It seems that my learned brother, Shri Tribeni Saran, was aware of this state of affairs and went so far as to concede and observe at page 23 as follows, viz.:

"In my opinion, it is only a case of anomally and not of repugnancy."

This opinion seems to have been founded on what he observes earlier at page 22 in the same paragraph, viz.:

"The question of repugnancy arises when there are two provisions of law so contradictory that it will be impossible to carry out both of them. It is by unwarranted implication that it is presumed that a Chief Commissioner, since he is subordinate to the Governor General, cannot be invested with Ordinance making powers. It could have been the case if the Governor General had been dealing with a territory not previously governed by a sovereign ruler, but in the case of such territories as Bhopal and especially when all the powers of a Ruler have been delegated to the Chief Commissioner under a valid enactment, it was only left the Governor General to take cognisance of the fact. I do not see how the provisions of the Bhopal Legislative Council Act can be called repugnant to the provisions of the Government of India Act."

7. With greatest respect for my learned brother, I am unable to persuade myself to agree. The very fact that under S.290A(2), Government of India Act, the Chief Commissioners of all the States, or groups of States, in respect of which an Order under S.290A(1)(a) was passed, were assigned the same position as the Chief Commissioner of Delhi, in so far as the provisions of the Government of India Act were applicable to the Chief Commissioners, clearly points out that the Governor General had no intention to give the Chief Commissioners of other such provinces powers higher than his (Chief Commissioner, Delhis) powers. The view expressed in the above quoted observations of the learned A.J.C. not only does not find support anywhere but runs counter to the very Order which the Governor General passed under S.290A(1)(a), Government of India Act, the effect of which was as laid down in sub-s.(2) of the section.

The Order having been made under a provision of the Government of India Act itself, could not be interpreted to suggest the view which runs counter to another provision of the same Act, namely, S.42, Government of India Act. In this view then it is apparent that the provisions of the Bhopal Legislative Council Act are repugnant to the provisions of the Government of India Act. The Bhopal Cattle Slaughter (Restrictions) Ordinance, 1949, is therefore ultra vires of the powers of the Chief Commissioner, Bhopal.

8. A faint reference is made by the learned Govt. Advocate to the Bhopal State Animal Preservation Act (7 of 1954), which received the assent of the President on 7-6-1954 and which is published in the Bhopal Gazette of 14-6-1954. It is said that the provisions of the Act are virtually the same as those in the Ordinance and though the Ordinance is not repealed by the Act, the penalty incurred in the former shall not be effected. The only answer to this suggestion is that it is irrelevant, as the prosecution against the non-applicants is for an offence under the Bhopal Cattle Slaughter (Restrictions) Ordinance, 1949.

9. Turning to the grounds stated by the learned Magistrate in his reference for examination of the question of the validity or otherwise of the Ordinance, the only question is whether the Ordinance need have stated that (1) it was necessitated by emergency, and (2) it was made or promulgated for the peace and good government of the Bhopal State or a part thereof, or whether this could be presumed under the law from the very fact that the Ordinance was made and promulgated. Section 12, Bhopal Legislative Council Act, 1922, as amended by Act 1 of 1940, is in terms substantially similar to those in section or para.72 of Schedule IX of the Government of India Act, 1935.

In the matter of Mrinal Kanti Ghose, AIR 1932 Cal 738 (B), a Special Bench of the Calcutta High Court laid down that-

"The validity of the Ordinance rests neither upon proof of an emergency nor, upon the recital of an emergency but upon the judgment of the Governor-General that immediate action was necessary."

In U Lun v. U Chit Hlaing, AIR 1941 Rang 49 (C), while dealing with the provisions of S.42, Government of Burma Act, 1935, it has been held that-

Where therefore an Ordinance issued is expressed to be under the powers conferred by S.42, it is implied that an opinion has been formed by the Governor and an individual judgment has been exercised by him."

In Emperor v. Benoari Lal Sarma, AIR 1945 PC 48 (D), it has been observed that-

"Section 72 of Schedule IX of the Government of India Act, 1935, does not require the Governor General to state that there is an emergency or what the emergency is, either in the text of the Ordinance or at all assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view that the emergency exists."

10. On the authority of the above decisions, with which I am in respectful agreement, I am of opinion that the Ordinance, if it had been otherwise valid and intra vires of the Chief Commissioner, need not have stated the ingredients referred to above and their existence must be presumed from the very fact that it was made and promulgated under a provision of law which was considered to empower him to do so. The Cattle Slaughter (Restrictions) Ordinance, 1949, could not, therefore, be held to be invalid on the grounds mentioned in the reference by the learned Magistrate.

11. Nevertheless, as pointed out above in the earlier part of this order, the said Ordinance is ultra vires of the powers of the Chief Commissioner, Bhopal and is, therefore, invalid. My answer to the reference is, therefore, as above.

Answer accordingly.

Misc. Criminal Case No.23 of 1954

The State v. Rashid And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

The State v. Rashid And Others

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