Authored By : Harold Derbyshire, Gentle

Harold Derbyshire, C.J.

1. This matter was referred by Ormond J. to the ChiefJustice under Chap. V, R 3 of the Original Side Rules of this Court. It is anapplication by Khetsidas Girdharilal who carries on business at No. 3,Pagayapatti Street, Calcutta, asking for an order under S. 45 of the SpecificRelief Act directing respondent 5 to remove the seal set on the applicantsshop, gaddi and godown, an order directing the release of the goods in the saidshop, gaddi and godown and for an order directing the respondents to forbearfrom forcing and compelling the applicant to sell or deliver his goods torespondents 1 to 4 and for other reliefs. The matter arises out of certainproceedings taken by the Government of Bengal for the purpose of ensuring abetter distribution of cloth in the Province. It is common ground that forsometime previous to March 1915 there had been an uneven distribution of clothin the form of dhotis and saris in the Province. Certain districts were withoutadequate supplies of clothing and it was believed that clothing sufficient tosatisfy such deficiencies temporarily existed in certain other parts of theProvince. The Government alleged that the mal-distribution was due to hoardingof cloth by certain persons and firms and the dealers alleged that suchmal-distribution was due to Government interference with ordinary tradingoperations. Whatever the cause, it was notorious that there wasmal-distribution of cloth in the Province. On Sunday, 25th March the policeacting under an Order made by the Government of Bengal referred to as theCalcutta Cotton Cloth and Yarn Emergency Search Order, 1945, visited certainshops, warehouses, godowns and offices in Calcutta where cloth was stored. TheOrder is as follows :

Whereas with a view to securing compliance with theprovisions of the Bengal Cotton Cloth and Yarn Control Order, 1948, it isexpedient to provide for the search of premises in Calcutta and for certainother supplementary matters :

Now, therefore, in exercise of the powers conferred by Cls.(a) and (f) of sub-r. (2) of Rule 81 of the Defence of India Rules, theGovernor is pleased to make the following Order, namely,

ORDER.

1. (1) This order applies to Calcutta as defined inparagraph 2 of this Order.

(2) It shall come into force at once.

2. In this Order, the words "Calcutta","cloth" and "yarn" have the same meanings as in the BengalCotton Cloth and Yarn Control Order, 1943.

3. Daring the continuance in force of this Order, any policeofficer not below the rank of Sub-Inspector, and any other person authorised inthis behalf by order in writing of the Director General of Enforcementappointed by the Provincial Government may, at any time, enter and search anypremises in which cloth or yarn is stored or in which be suspects or has reasonto believe that cloth or yarn is stored.

4. Any police officer or person searching any premises underthe provisions of paragraph 3 of this Order, may seal or cause to be sealed, insuch manner as he may see fit, the premises so searched, or any box, bale orpackage in such premises, which contains or which he suspects or has reason tobelieve contains cloth or yarn, and he may also pack and seal in such manner ashe may see fit any cloth or yarn in such premises, which may be found in anunpacked condition, or instead of so sealing any such box, bale or package, orso packing and sealing any cloth or yarn, he may, if he deems it expedient,seize any such box, bale, package, cloth or yarn, in respect of which he hasreason to believe any contravention of the Bengal Cotton Cloth and Yarn ControlOrder, 1943, has occurred.

5. During the search of any premises under this Order, or atany time after such a search has been made, any police officer not below therank of sub-inspector or any person authorised in writing in this behalf by theDirector-General of Enforcement appointed by the Provincial Government, mayenter or re-enter such premises and make an inventory of any cloth or yarn insuch premises, and may for this purpose open any box, bale or package whichcontains, or which be suspects or has reason to believe contains, cloth or yarnand he may also for this purpose break any seal affixed to any such box, bale,package, cloth or yarn and reseal it in the same manner.

6. Subject to the provisions of paragraph 5 of this Order,no person, other than the Commissioner of Police or a Deputy Commissioner ofPolice or a Police Officer authorised in writing in this behalf by theCommissioner of Police, shall break or tamper with in any way any seal affixedunder para. 4 or para. 5 to any box, bale or package, or to any cloth or yarnpacked under the said paragraph, or remove from any premises any box, bale,package, cloth or yarn to which a seal has been affixed under either of thesaid paragraphs.

7. Any police officer or person searching any premises underpara. 3 may, by order in writing, direct the owner, occupier or persons in chargeor control of such premises, or any employee of such owner, occupier, orperson, to furnish him forthwith,

(a) with any information in regard to any other premisesowned, occupied or controlled in any way by such owner, occupier or person incharge or control of the premises so being searched, and the person so directedshall comply with such a direction to the best of his knowledge and belief.

(b) With a true statement of the quantities of cloth andyarn of each different type or quality in the premises so being searched at thetime of commencement of such search.

8. Any Court trying any contravention of para. 6 or para. 7of this Order may, without prejudice to any other sentence it may pass, directthat any box, bale, or package of cloth or yarn in respect of which it issatisfied that such a contravention has occurred shall be forfeited to HisMajesty.

2. In some cases the police seized cloth and in other casesthey sealed the premises where cloth was stored and directions were afterwardsissued by or under Government authority directing the owners of the clothconcerned to hand over to one of the four firms or companies, who arerespondents 1, 2, 3 and 4 and are known as Handling Agents. The purpose of thehanding over was stated to be so that the cloth could be distributed to thosewho need it. Respondent 5 is the Additional Director of Textiles, Bengal. Theapplicant for fifty years past has carried on business as a cloth dealer inCalcutta at No. 3, Pagayapatti Street, where he has a shop, at No. 35 CrossStreet, where he has a gaddi or office and No. 17/1, Shibtolla Street,Calcutta, where he has a godown or warehouse. The applicant had a licence todeal in cloth given under the Bengal Cotton Cloth and Yarn (Control) Order of1943. On 25th March 1946, the Police visited the applicants gaddi which wasclosed, being a Sunday, and sealed it without entering it. Two days later, on27th March the Police visited also the shop and the godown of the applicant andsealed them. The applicants gaddi contained not only cloth but othercommodities and the applicants hooks of account and some of his cash. On 2ndApril 1945, respondent 5 who is the Additional Director of Textiles for Bengalissued a direction to the applicant amongst other dealers as follows:

No. 1. S. Under powers conferred upon me by para. 5 of theConditions of the Licence in Form B of the Schedule to the Bengal Cotton Clothand Yarn Control Order, 1943 (hereinafter referred to as the Order) I herebyissue the following directions :

(i) All licensees (other than those who hold only a retailor hawkers licence) whose undertaking is carried on or whose godowns or otherpremises where cloth is stored lie, within Calcutta as defined in cl. 2 of theOrder shall on demand make over alt cloth in their possession to one of theundermentioned firms or companies for purchases by the firm or company and tonone else: (1) Messrs. Calcutta Cloth Agency, 138, Cross Street, Calcutta. (2)Messrs. Partabmull Rameswar, 46, Strand Road, Calcutta. (3) Messrs. GangadharBanerjee & Co. Ltd., Bakulia House, Kidderpore. (4) Messrs. S. M. Hanif,76, Colootola Street, Calcutta. For the purposes of this, direction the firmsor companies shall be known as the Handling Agents.

(ii) The Licensee shall make over the goods on demand by anyof the Handling Agents mentioned in (i) above or by the Handling Agentsauthorised agent or representative, and shall, on completion of the makingover, give the Handling Agent or his authorised agent or representative a billwith the original invoice or invoices in relation to the goods made over andpayment shall subsequently be made by the Handling Agent at the following rates: (a) In regard to quota goods of quota holders of Bengal Mills 3% over theex-mill price of the goods in question, (b) In regard to quota goods of quotaholders of mills outside the Province and in the possession of the importers,61/2% over the ex-mill price of the goods in question. (c) In regard to allother goods, 7% over the ex-mill price of the goods in question.

(iii) The following shall be exempted from the operation ofthe directions contained in paras. (i) and (ii) above: (1) Canvas Cloth. (2)Handloom Cloth. (3) Cloth which prior to these directions, has been printed,dyed or bleached by hand or embroidered. (4) Made-up garments excluding sarisand dhoties. (5) All cloth belonging to any Government or to His MajestysArmed Forces. (6) All cloth intended for any Government in regard to which theDirector of Textiles as defined in cl. 2 of the Order is so satisfied and whichhe thereafter specifically exempts. (7) Hosiery goods. (8) All cloth importedfrom outside India.

2. The directions contained in the following orders of theDirector of Textiles (commonly known as the quota to quota scheme orders) arecancelled:-

Provincial Textiles Controllers No. 8084 (104) CY. datedthe 16th November 1944 as amended from time to time.

A. A. Shah.

Additional Director of Textiles,

3. The Handling Agents named did not immediately givedirections to the applicant with regard to the cloth and the applicant madethis application to Ormond J. in substantially the terms mentioned above on 9thApril 1945. As the applicant contended that the Government of India had nopower under the Government of India Act, 1935, to legislate in respect of therequisitioning of movable property Ormond J. has referred the matter to thisBench. When the matter came on for hearing, Mr. Chatterjee, who appeared forthe applicant, said that up to date no instructions had been given for the removalof the cloth and that the premises remained sealed. He stated that his clientswere suffering loss by reason of the premises remaining sealed. TheAdvocate-General, who appeared for the Additional Director of Textilesintimated that access could be had to the books and other property of theapplicant in the premises sealed if the applicant desired it. Apparently, theGovernment has not taken any further steps with regard to the applicantsproperty although Ormond J. stated that he did not propose to make, and did notmake, any order restraining the Government from dealing with the applicantsproperty.

4. The question substantially dealt with before us waswhether the Government had the power to issue the direction set out abovehaving regard to the provisions of the Government of India Act. Themanufacture, distribution and sale of cloth in India has been controlled in onemanner or another since 17th June 1943, under the provisions of R. 81 of theDefence of India Rules made pursuant to S. 2 (2) (XX) of the Defence of IndiaAct, when the (All India) Cotton Cloth and Yarn (Control) Order, 1943, wasmade. This Order provided for the control of cloth by the Central Governmentthrough a Textile Commissioner assisted by a Textile Controller and it providedfor the fixing of maximum prices of cloth and the distribution of cloth. Thiswas amended on 24th November 1943, and power conferred on the TextileCommissioner to fix maximum prices of cloth after consultation with the TextileBoard. On 22nd January 1944, this order was again amended. It was furtheramended on 28th April 1944. Maximum prices were to be prescribed and a systemof quotas introduced whereby dealers who had bought and manufactured during thepast three years were allowed to buy the same proportion of the manufacturersoutput as they had bought in the three previous years. On 19th October 1943,the Bengal Government, in exercise of the powers conferred by sub-rule (2) ofR. 81 of the Defence of India Rules made the Bengal Cotton Cloth and Yarn(Control) Order of 1943 which extended to Bengal and came into operation on 1stFebruary 1944. It set up a Controller appointed by the Provincial Government toperform the functions of the Provincial Textile Controller. It provided in S. 3(1) as follows:

No person shall after the commencement of this Order engagein any undertaking which involves the purchase, sale or storage for sale ofcloth or yarn or both unless he holds a licence in this behalf under the orderand except in accordance with the conditions specified in such licence.

Section 7 (1) provides as follows:

The maximum prices at which cloth or yarn may be sold by adealer holding a licence under this order shall be such as may be fixed by theProvincial Government by notification in the Official Gazette.

5. Later to this were added the words "or theProvincial Textile Controller" by a notification of the Government ofBengal in a Gazette Extraordinary under sub-rule (2) of R. 81 of the Defence ofIndia Rules, dated 2nd April 1945. Sub-section (2) provides:

No person shall sell and no person shall purchase cloth andyarn at prices exceeding the maximum prices respectively fixed undersub-paragraph (1).

Section 8 provides:

(1) No person being the holder of a licence under this Ordershall contravene any of the conditions subject to which he holds the licence,and if any such person contravenes any of the said conditions, then withoutprejudice to any other action that may be taken against him, his licence may becancelled by order of the Provincial Textile Controller.

Section 9 provides:

Any officer authorised by the Controller in this behalf mayenter upon and inspect any premises in which he has reason to believe that thepurchase, sale or storage for sale of any cloth or yarn is taking placecontrary to the provisions of this Order.

6. In the schedule to the said Order is set out the form oflicence issued to a dealer in cloth. Condition 5 of the licence which is setout in the Order provides that :

The licensee shall comply with any direction that may begiven by the Provincial Textile Controller in regard to the purchase, sale orstorage for sale of cloth or yarn.

7. The applicants contentions may be summed up as follows:The direction or order requiring him to hand over the cloth to the HandlingAgents is ultra vires and of no effect because (a) it is, in effect, arequisition of his property and there is no power in the Legislature given toit under Sch. VII of the Government of India Act to requisition movableproperty; (b) it infringes S. 299 (1) of the Government of India Act, 1935; (c)the Bengal Control Order of 25th August 1943, has not conferred any power onthe Bengal Government or its officers to issue directions to sell any quantityof cloth to any specified person or persons; (d) the price named in order No.l. 8. has not been fixed under S. 7 of the Bengal Control Order; and (e) thislanding over of cloth is not a sale within the meaning of the Sale of GoodsAct. The Advocate-General on behalf of the Government of Bengal has contendedthat there is no substance in any of these objections and that the demand wasin order. He contends that all that Mr. Shah has done has been to order theapplicant to sell his cloth to one of the Handling Agents and that under cl. 5of the terms of the licence the Cloth Controller can direct him to do this. Ifthe applicant does not do this, he may lose his licence and thenceforward beunable to deal with this cloth which may then be requisitioned.

8. As regards the contention that the Legislature has nopower to requisition movable property the Court has dealt with this contentionin Jashoprokash Mitter v. Dy. Commissioner of Police, Motor Vehicles DepartmentReported in (46) 33 A. I. R. 1946 Cal. 194, 1946 C/26 & 27 which was heardimmediately after this case. In my opinion, as expressed there, the Governmenthas the power to requisition movable property under the Government of IndiaAct. However, in my view, the procedure in this case is not a requisitioning ofthe applicants cloth, it is probable that if the applicant does not dispose ofhis cloth as directed in the Circular No. 1 (s) when requested to do so by theAdditional Director of Textiles, his cloth will be requisitioned, but thatstage has not been reached. The direction is to hand over the cloth to one ofthe handling firms when it will be paid for in accordance with the price fixedin the direction.

9. The direction in question was given under paragraph 5 ofthe conditions endorsed on the applicants licence. The Bengal Cotton Cloth andYarn Control Order, under which the licence was given, was made by theGovernment of Bengal consequent upon the following provisions of law. UnderArticle 27 of List II of schedule VII of the Government of India Act, 1935, theProvincial Government has power to legislate for trade and commerce and underArticle 29 for the supply and distribution of goods. Those powers to legislatewere given to the Government of India under S. 102 of the Government of IndiaAct consequent upon the emergency proclamation of 3rd September 1989. Section2(2) (XX) of the Defence of India Act gave authority to the Central Governmentto make rules relating to the distribution and sale of essential goods. Rule 81is such a rule. By R. 81 (2) the Central or Provincial Government, so far as itappears to it to be necessary or expedient for securing the defence of BritishIndia or the efficient prosecution of the war or maintaining services essentialto the life of the community, may by order provide:

(a) for regulating or prohibiting, the.... distribution anddisposal of articles of any description.... and for requiring materials orthings kept for sale to be sold either generally or to Specified persons orclasses of persons or in specified circumstances;

(b) for controlling the prices or rates at which articles orthings of any description may be sold.

10. In my opinion, the Bengal Cotton Cloth Control Ordermade by the Government of Bengal on 19th October 1943 comes within the termsand powers of R. 81 (2) (a) and(b) of the Defence of India Rules.

11. Wars, particularly modern wars, invariably producescarcity of goods essential to the life of the people and with them scarcitygives uneven distribution of those goods. Mal-distribution of such goods,especially food and clothing, may easily result in public disorder. By S. 7 (1)of the Bengal Cotton Cloth and Yarn Control Order as amended on 2nd April 1945,the Provincial Textile Controller can prescribe maximum prices for the sale ofcloth. On the same date, the Government of Bengal gave the AdditionalController the same powers as the Controller. The direction No. 1 (s) of 2ndApril gave the applicant instructions to hand over his cloth to one of theHandling Agents and prescribed the rates At which he was to be paid. In my opinion,that direction was clearly within the powers given in R. 81 (2) (a) and (b) andis in accordance with condition 5 of the licence which is set out in the BengalCloth and Yarn Control Order. If the applicant does not hand over his cloth butkeeps it, he is liable to have it requisitioned and to have his licencecancelled. If he hands over the cloth, there is a sale and the price or ratespecified in the direction is to be paid for the cloth so handed over as soonas the price is ascertained. The price fixed is one which the Government ofBengal through its authorised officer is entitled to fix. It is no objection tothis price that at some period previously a higher price was permissible.

12. One of the objects of controlling the price is toprevent people selling at prices higher than are deemed fair and proper by theappropriate authority. The applicant has not been deprived of his clothotherwise than according to law and he is directed to hand it over inaccordance with law. He will get the price that has been fixed as fair andproper according to law. That this may be less than the price he paid is noobjection to the Control Order. In my opinion, the order of the Government ofBengal in question and the procedure of the Government of Bengal in this caseare according to law and I see no reason to interfere with the order that hasbeen made. The application is, therefore, refused and the rule nisi discharged.The applicants must pay the respondents the taxed costs of the matter.

13. Certificate under S. 205 of the Government of India Act,1935, is granted.

Gentle, J.

14. The petitioner is a firm of cloth merchants in Calcutta,the office of the business is at No. 3, Pagyapati Street, there is a shop atNo. 35, Cross Street, and a godown at No. 17/1, Shibtolla Street. In thepetition it is alleged that in March 1945 quantities of cloth were at thesethree premises which had been purchased at 8% above ex-mill maximum price orex-mill contract price. Respondent 5 is the Additional Director of Textiles,Bengal, and respondents 1-4 are dealers in cloth in Calcutta. On Sunday 25thMarch 1945, a number of police officers of the Enforcement Branch, purportingto be acting pursuant to Notification No. 3084 D. C. S., dated 24th March 1945,made by the Governor of Bengal (which is not named but has been called theCalcutta Cotton Cloth and Yarn (Emergency) Search Order, 1945, and hereinaftercalled "the Search Order") went to the petitioners office; no onewas at the premises and they were looked; the police sealed the entrances toprevent cloth being removed therefrom. On 27th March the police also sealed thepetitioners shop and godown. At or about the same time, similar action wastaken with respect to a large number of cloth dealers in Calcutta. In para. 5of his affidavit, respondent 5 says this was a general drive organised by theauthorities concerned to check the widespread evasions of the Bengal Cotton,Cloth and Yarn Control Order, 1943, (hereinafter called "the Bengal ClothOrder") which were suspected of being practised in Calcutta and to findout all hidden and undeclared stocks of cloth which were suspected of beingwithheld from sale to the general public for the purposes of sale in the blackmarket.

15. Purporting to exercise powers conferred upon him bypara. 5 of the conditions of the licence in From B of the schedule to theBengal Cloth Order, respondent 5 issued an Order (hereinafter called"Order No. 1. S") on 2nd April 1945 by which he directed, inter alia,the petitioner and other cloth merchants to make over to one of the respondents1 to 4 (therein called "the Handling Agents"), for purchase by them,all cloth in the possession of the merchants and the Handling Agents shouldsubsequently pay for such cloth at the rate of 7% over ex-mill price. Thepetitioner challenges the validity of the action by the police and of Order No.1. S. and has invoked the provisions of S. 45, Specific Relief Act, 1877,praying that this Court may direct, the removal of the seals from thepetitioners premises; return of the goods; the respondents to forbear fromforcing or compelling the sale of the cloth in accordance with Order No. 1. S;an injunction restraining the respondents 1 to 4 from removing or takingpossession of the goods; and other consequential relief. On 9th April 1945Ormond J., granted a rule nisi and directed the respondents to shew causeagainst the relief claimed. On 12th April the learned Judge refused to grant aninterim injunction and, pursuant to Chap. V. R. 3 of the Original Side Rules ofthis Court, he referred the proceedings to the Chief Justice for constituting aBench of two or more judges to hear the matter of the petition. Upon thedirection of the Chief Justice the matter now comes before us for decision.

16. Shortly, the objection to the validity of the procedureby the police and the 5th respondent is that, there is no authority of law bywhich it can be justified; the Defence of India Act 1939, the Rules madethereunder and the Orders (to which reference is made hereafter) by the CentralGovernment and the Provincial Government and the Order of respondent 5 areultra vires the Government of India Act. Section 100 of the Government of IndiaAct confers legislative powers. By sub-s. (1) the Federal Legislature hasexclusive power to make laws with respect to matters in List I in Schedule VIIof the Act; sub-s. (3) confers similar power upon a Provincial Legislature withrespect to matters in List II in the same schedule; and sub-s. (2) empowersboth the Federal and the Provincial Legislatures to make laws with respect tomatters in List III of the schedule. Section 316 provides that powers (to makelaws) conferred by the Apt on the Federal Legislature shall be exercised by theIndian (or Central) Legislature. Sub-section (1) of S. 102 enacts that if theGovernor-General, in his discretion, declares by proclamation that a graveemergency exists whereby the security of India is threatened, whether by war orinternal disturbance, the Federal Legislature shall have power to make laws fora Province or any part thereof with respect to any of the matters enumerated inthe Provincial Legislative List (List II).

17. Upon the outbreak of war with Germany on 3rd September1939, the Governor-General, in pursuance of the provisions in the lastmentioned sub-section, declared, by Proclamation, that a grave emergencyexisted. From the date of the proclamation, the Central Legislature has hadpower to make laws with respect to all matters in Lists I, II and III. On 29thSeptember 1939, the Central Legislature passed the Defence of India Act 35([XXXV] of 1939). The relevant provisions are :

Section 2. (1) The Central Government may, by notificationin the Official Gazette, make such rules as appear to it to be necessary orexpedient for securing the defence of British India, the public safety, themaintenance of public order or the efficient prosecution of war, or formaintaining supplies and services, essential to the life of the community.

(2) Without prejudice to the generality of the powers conferredby sub-s. (1) the rules may provide for, or may empower any authority to makeorders providing for, all or any of the following matters, namely:

* * * *

(xx) the control of.....trade.... for the purpose ofregulating.... the supply of articles.... of any description whatsoever whichcan be used......for maintaining supplies and services essential to the life ofthe community.

(5) A Provincial Government may by order direct that anypower...... which by rule made trader sub-s. (1) to conferred or imposed on theProvincial Government.... shall in such circumstances and under suchconditions, if any, as may be specified in the direction, be exercised ordischarged by any officer......

18. The Defence of India Rules were made, by the CentralGovernment, by virtue of S. 2 (1). Sub-rule (2) of R. 81 provides that:

The Central Government or the Provincial Government, so faras appears to it to be necessary or expedient for securing the defence ofBritish India or the efficient prosecution of the war or for maintainingsupplies and services essential to the life of the community, may by orderprovide :

(a) for regulating.... the... distribution.... of articlesor things of any description whatsoever...... either generally or to specifiedpersons.... and for requiring articles or things kept for sale to be soldeither generally or to specified persons.....

(f) for any incidental and supplementary matters forwhich.... the Provincial Government thinks it expedient for the purposes of theOrder to provide, including, in particular, the entering, search and inspectionof premises to which the order relates with a view to securing compliance withthe order.... the grant or issue of licences......"

19. Power to make law can be exercised by enacting such lawin a statute or by the statute empowering the making of rules with respect tospecified matters,which matters must be within the law-making power. When rulesare made under authority conferred by a statute they are deemed to be part ofit, and have the same force and effect as if their provisions were included inthe statute. At the date when the Act was passed, the Central Legislature hadlaw-making power with respect to all matters in Lists I, II and III. So far asthe present considerations are concerned, this law making power is relevantonly to the provisions in S. 2 (1), (2) (xx) and (6) of the Act and R. 81 (2)(a) and (f). It was contended by Mr. N. C. Chatterjee, on behalf of thepetitioner, that these provisions do not relate to a subject in any LegislativeList and, consequently, they are ultra vires the Government of India Act. Item29 in List II includes "Production, Supply and Distribution ofgoods." Section 311 (2) of the Government of India Act defines"goods" as including "all materials, commodities andarticles." Cloth is an article and is essential to the life of thecommunity. Thus the Central Legislature has power to make law with respect tothe distribution of cloth. "Distribution" is defined in the ConciseOxford Dictionary as "apportionate dispersal among consumers effected bycommerce; extent to which individuals or classes share or aggregate products ofcommunity." The provisions of S. 2 (1), (2) (XX), enabling rules to bemade to regulate supplies of articles which can be used to maintain suppliesessential to the life of the community, and the provisions of R. 81 (2) (a) and(f), enabling the making of orders regulating the distribution of articles,requiring them to be sold to specified persons and for incidental matters andentering and searching premises and the issue of licences, relate to"distribution" within the definition. Section 2 (5), by which aProvincial Government can delegate its order making powers, is unobjectionable.The provisions of S. 2 (1), (2) (XX) and of R.81 (2) (a) and so far as may be,of S. 2 (5) and of Rule 81 (2) (f) relate to the distribution of goods in Item29 of List II and are pieces of legislation upon a subject with respect towhich the Central Legislature has power to make law and being within its competence,the provisions are intra vires the Government of India Act.

20. Exercising the powers contained in sub-rule (2) of Rule81, the Central Government, by Notification, made the Cotton Cloth and Yarn(Control) Order, 1943. This Order was amended from time to time and, in March1943, it provided, so far as is relevant, that every sale of cloth by a dealer,except to a consumer, shall be at a maximum price of 10% above ex-factory(ex-mill) price. The petition alleges that the cloth in the office, shop andgodown on 25th and 27th March 1945, when these places were sealed, werepurchased at 8% above ex-mill price. Fixation of price is involved inregulating the distribution of articles, of which cloth is one. Power to makethis order is conferred by R. 81 (2). In exercise of the powers conferred bysub-r. (2) of R.81, the Governor of Bengal made the Bengal Cotton Cloth andYarn (Control) Order 1943, (herein called "the Bengal Cloth Order")which came into force on 1st February 1944. Amendments were made from time totime and in March 1943 the Order provided, inter alia that:

Paragraph 2 (g) Director of Textiles means the officerappointed by the Provincial Government as the Director of Textiles and includesany additional Director of Textiles.

3 (1) No person shall.... engage in any undertaking whichinvolves the purchase, sale or storage for sale of cloth... unless he holds alicence in this behalf under the Order and except in accordance with theconditions specified in such licence.

4 (2) Licences issued under this Order shall be in Form B asset forth in the Schedule to this Order.

(3) If the Director of Textiles is satisfied that anapplication for a licence made under sub-paragraph (1) is in order, he shallissue the licence to the applicant.

8(1) No person being the holder of a licence under thisOrder shall contravene any of the Conditions subject to which he holds thelicence....

SCHEDULE F.

Conditions of Licence

1. This Licence is being issued subject to the provisions ofthe Bengal Cotton Cloth and Yarn (Control) Order 1943.

2. The licensee shall comply with any directions that may begiven by the Director of Textiles in regard to the sale.... of cloth.

Note. The licensees attention is drawn to paragraph 8 ofthe Bengal Cotton Cloth and Yarn (Control) Order 1943 which reads...."

(The terms of paragraph 8 are then set out).

The petitioner firm is the holder of a licence issuedpursuant to the Bengal Cloth Order. Rule 81 (2) (f) provides for the grant orissue of licences and, in this respect, the above Order conforms with the rule.Clause (a) of sub-r.(2) authorises a Provincial Government to require goods tobe sold to specified persons the effect of condition 5, requiring compliancewith the directions of the Director of Textiles in regard to the sale of cloth,is discussed later. In exercise of the powers conferred by cls. (a) and (f) ofsub-r. (2) R. 81, on 24th March 1945, the Governor of Bengal made Order No.3084 D. C. S. (herein called "The Search Order").The material provisionsare:

Paragraph 2 :".... any police officer not below therank of Sub-Inspector.... may at any time enter and search any premises inwhich cloth.... is stored...

4 : Any police officer.... searching any premises under theprovisions of paragraph 3 of this Order, may seal... the premises sosearched...

21. The Search Order is within the power conferred by R. 81(2) (f). The petitioners office premises were sealed on 25th March by policeofficers acting under the Order. Mr. Chatterjee, for the petitioner, complainedthat this was done without notice to the petitioner, and that the day on whichit took place was Sunday when the office was locked and no one was present. Theshop and godown were sealed two days later, on 27th March.

22. There is no substance in the complaint of absence ofnotice, the Order does not require it to be given and the action taken wasauthorised by the Search Order.

23. There was a further complaint that the business booksand documents and some money were in the office, which the petitioner had beenunable to obtain although the police authorities and the Director General ofConsumer Goods had been asked, by petition, to return them. It is unfortunatethat the books and documents were not handed over, or facilities afforded forexamination and reference, and the money returned. The failure, however, to dothis does not render unlawful the sealing of the premises. No point is madethat the premises were sealed without a search being made; since no one waspresent and the premises were locked, it could not take place. It was notsuggested, in argument, that the officer or officers who sealed thepetitioners premises were not authorised to carry out the provisions of theSearch Order. Order No. 1. S. dated 2nd April 1945, made by respondent 5, readsas follows:

Under powers conferred upon me by para. 5 of the conditionsof the Licence in Form B of the Schedule to the Bengal Cotton Cloth and YarnControl Order 1943 (which is issued to the petitioners and other clothdealers)... I hereby issue the following directions:

i. All licensees... within Calcutta... shall on demand makeover all cloth in their possession to one of the undermentioned firms orcompanies for purchase by the firm or company and to none else:

(Here follows the names of respondents 1-4) for the purposesof this direction the firms or companies snail be known as the Handling Agents.

ii. The licensees.....shall, on completion of the makingover, give the Handling Agents... a bill with the original invoices in relationto the goods made over and payment shall subsequently be made by the HandlingAgents at the following rates:

(c)... 7% over the ex-mill price of the goods in question.

The validity of Order No. l.S. is challenged on thefollowing grounds: (a) Respondent 5 had no power or authority to issue it. (b)The compulsory sale of the Handling Agents will cause the petitioner a loss of1% upon the price at which the goods were purchased, and the entire stock willbe disposed of and the business closed down. (c) The petitioner will bedeprived of property contrary to S. 299 (1), Government of India Act, 1935. (d)The direction, that payment will be made subsequent to handing over the goods,is contrary to the provisions of the Sale of Goods Act, 1930.

24. The Bengal Cloth Order provides for regulating thedistribution of cloth, the sale of cloth and the issue of licences, and itprescribes by whom and the conditions upon which licences will be issued. Thisis in accordance with, and in the exercise of, the powers conferred upon theProvincial Government by R. 81. Included in these powers, there is a power torequire cloth to be sold to specified persons, which power it can exerciseitself or it can delegate the exercise of it to an officer. Respondent 5 is theAdditional Director of Textiles, which office is included in the expression"Director of Textiles," and he is an officer to whom such delegationcan be made. When a person, who has power to do an act himself or to authorisesome other person to do it, gives a direction that, when the act is done by theother person, it shall be observed, the person giving the direction therebyconfers authority upon that other person to do the act. The schedule to theBengal Cloth Order contains the form of the licence which is directed to beissued and this form, with its terms or conditions, is part of the Order.Condition 5 of the licence states that the licensee shall comply with anydirections given by the Director in regard to the sale of cloth and is one ofthe conditions subject to which para. 8 (1) provides a person holds a licenceand which he is for bidden to contravene. The words "requiring" in R.81 (2) (a) and "directions" in condition 5 bear the same meaning,namely, "order." If condition 5 had prescribed that there should becompliance with the directions of the Provincial Government this would haveshewn that the power to make an order regarding the sale of cloth had not beendelegated. But the provision that the holder of a licence shall comply with thedirections of the Director, this being one of the conditions upon which thelicence is held and which the holder is forbidden to contravene, and,therefore, which must be observed, is a direction to the Director to make anorder regarding sale of cloth and is a delegation to him to exercise the power.At the date when respondent 5 made order No. 1. S, the power to make such orderhad been delegated to him and he was authorised, to make it. In thesecircumstances it is a valid order and is effective. Incidentally, I desire toobserve, such order by respondent 5 is probably effective only in respect ofpersons who hold licences granted under the Bengal Cloth Order. This, however,is immaterial in the present proceedings since the petitioner is the holder ofa licence.

25. Now as to the contention that Order No. 1. S. willdeprive the petitioning firm of its property contrary to S. 299 (1), Governmentof India Act; this sub-section provides that: "No person shall be deprivedof his property in British India save by authority of law." The contentionwas two-fold : Firstly, it is alleged (although not admitted by respondent 5,but is assumed) that the cloth was purchased at 8% above the ex-mill price; ifit is sold at 7% above that price, as Order No. 1. S. directs, a loss of 1% willbe incurred upon the transactions. Secondly, that the sale of the cloth willcause the petitioners business to be closed down as the entire stock will bedispersed and further supplies will be unobtainable. The second contention wasbased upon the effect of the provisions of the Calcutta Cloth and Yarn(Movements Second Restriction) Order 1943, made on 24th March 1943 whichprovides in sub-para, (1) of paragraph 3 that:

During the continuance in force of this Order, no personshall more, or cause to be moved any cloth.... from any place of business orstorage within Calcutta to any other place whatever outside such place ofbusiness or storage, except under and in accordance with the conditions of apermit granted in this behalf by the Director General.

By sub-para. (2) of para. 2 of the Order the expression"Director General" means the Director General of Consumer Goodsappointed by the Provincial Government. It was not suggested that theProvincial Government was not empowered to make the Movement Order, but it wasargued that its provisions prevent a seller giving delivery of cloth and,therefore, enforcement of order No. 1. S. will have the effect of closing downthe petitioners business as no purchases can be made to replace the stock ifit is sold as directed by that order, since delivery will not be able to beobtained. Order No. 1. S. is authorised by the Defence of India Act and theRules, respondent 5 had the power to make it, and it conforms with theprovisions of the Act and Rules. Assuming that the petitioner will be deprivedof property by virtue of the Order, that will be done with authority of law,and consequently, there will be no infringement of S. 229 (1). Further, if thepetitioner purchased the cloth at 8% above ex-mill price, he may have made abad bargain and if so, he has no cause of complaint on that account; in regardto the sale of the entire stock, payment will be made for the cloth and thissale will not deprive the firm of its business; the goodwill and the name willremain; purchases can be made to replace the stock and delivery will not beimpossible but will be obtained by means of a permit granted by the DirectorGeneral to move the goods.

26. The remaining portion of the Order No. 1.S. to whichexception is taken, is the direction that payment will be made subsequent tothe goods being handed to the Handling Agents. It was contended that, under S.32, Sale of Goods Act, the delivery of the goods and payment of the price areconcurrent conditions and the petitioner, as seller, is entitled to be paid theprice by the Handling agents at the time of delivery to them. Section 32 doesso provide "unless it is otherwise agreed." The Order requires thepetitioner to give the Handling Agents a bill with the original invoice relatingto the purchase, upon completion of making over the goods to them, and is forthe purpose of ascertainment of the price payable to the petitioner. The Saleof Goods Act contemplates payment at a date later than delivery, and, incommercial transactions, it is customary to give credit and payment isfrequently made at some date subsequent to delivery. If, according to the termsof a contract, payment is not due upon delivery and, if no time is specified,it has to be made within a reasonable time. Respondent 5 has the power, whichwas delegated to him, to require the cloth to be sold, to specified persons;this must include power to prescribe the terms of the sale. He has done so byproviding for payment subsequent to delivery but, since no time is specified,it will have to be made within a reasonable time. The Order does not violatethe provisions of the Sale of Goods Act.

27. In my opinion the Defence of India Act and the rulesmade thereunder, the several Orders, issued respectively by the Central Government,the Provincial Government and respondent 5, are not ultra vires the Governmentof India Act but they are valid and are within the powers of the authorities bywhom they are made. It follows that the petitioner is not entitled to therelief which is sought. The provisions of S. 45, Specific Relief Act, underwhich these proceedings have been taken, enable this High Court to make anorder requiring any specific act to be done or forborne by any person holding apublic office. In so far as respondent 5 is concerned, he is a public officerand the section can be invoked against him in a proper case.

28. The remaining respondents 1 to 4 are not public officersbut are cloth merchants, carrying on businesses in Calcutta, who have beenauthorised to acquire cloth which must be sold to them by the owners. They arecalled "Handling Agents" in order No. 1. S., but this is merely anidentification nomenclature and is not one of description. Proceedings do notlie against them under S. 45. In my view, the rule nisi granted by Ormond J.should be discharged and the application refused with costs.

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Khetsidas Girdharilal vs. Pratapmull Rameswar and Ors.(28.05.1945 - CALHC)