DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

ENABLING STATUTES

SUBJECT

INTERPRETATION OF STATUTES

NAME OF THE LECTURER

Mr. BHARTH KUMAR

ATTILI. LEELA NAGA JANAKI RAJITHA

6TH SEMESTER

2017018
Contents
INTRODUCTION:....................................................................................................................3

Classification of statutes:...........................................................................................................3

Enabling statutes:.......................................................................................................................5

Purpose & Effects......................................................................................................................5

Construction of Enabling Statute...............................................................................................6

Rules As To Discretionary Powers Given By Enabling Acts....................................................7

Case Analysis:..........................................................................................................................13
 ENABLING STATUTES
INTRODUCTION:
The term interpretation means “To give meaning to”. Governmental power has been divided
into three wings namely the legislature, the executive and the judiciary. Interpretation of
statues to render justice is the primary function of the judiciary. It is the duty of the Court to
interpret the Act and give meaning to each word of the Statute. The most common rule of
interpretation is that every part of the statute must be understood in a harmonious manner by
reading and construing every part of it together. The maxim “A Verbis legis non est
recedendum” means that you must not vary the words of the statute while interpreting it. The
object of interpretation of statutes is to determine the intention of the legislature conveyed
expressly or impliedly in the language used.

The court is not expected to interpret arbitrarily and consequently there have to be certain
principles which have evolved out of the continuous exercise by the courts. These principles
are sometimes called rules of interpretation. The words interpretation and construction are
generally used synonymously even though jurisprudentially they are perhaps different.
Interpretation means the art of finding out the true sense of an enactment by giving the words
in their natural and ordinary meaning whereas construction means drawing conclusion on the
basis of the true spirit of the enactment even though the same does not appear if the words
used in the enactments are given their natural meaning. To ensure that justice is made
available to all, the judicial system has been evolved in all nations. It is extremely important
and infact necessary also that the Courts interpret the law in such a manner that ensures
‘access to justice’ to the maximum. For this purpose, the concept of ‘Canons of
Interpretation’ has been expounded. The Canons are those rules that have been evolved by
the Judiciary to help Courts determine the meaning and the intent of legislation.

Classification of statutes:
A statute is a written law passed by a legislature on the state or federal level. Statutes set forth
general propositions of law that courts apply to specific situations. A statute may forbid a
certain act, direct a certain act, make a declaration, or set forth governmental mechanisms to
aid society. A statute begins as a bill proposed or sponsored by a legislator. If the bill
survives the legislative committee process and is approved by both houses of the legislature,
the bill becomes law when it is signed by the executive officer (the president on the federal
level or the governor on the state level). When a bill becomes law, the various provisions in
the bill are called statutes. The term “statute” signifies the elevation of a bill from legislative
proposal to law. State and federal statutes are compiled in statutory codes that group the
statutes by subject.

These codes are published in book form and are available at law libraries. Law making
powers are vested chiefly in elected officials in the legislative branch. The vesting of the
chief law making power in elected lawmakers is the foundation of a representative
democracy. Aside from the federal and state constitutions, statutes passed by elected
lawmakers are the first laws to consult in finding the law that applies to a case. A statute may
be generally classified with reference to its duration, method, object and extent of application.

A. Classification with reference to duration.

Such a mode classifies a statute as:
1) Temporary Statute.
2) Permanent Statute.

A temporary statute is one where its period of operation or its validity has been fixed by the
statute itself. Such an Act continues in force, unless repealed earlier, until the time so fixed. A
permanent statute on the other hand, is one where no such period has been mentioned but this
does not make the statute unchangeable; such a statute may be amended or replaced by
another act.

B. Classification with references to method.

Such a mode classifies a statute as:
1) Mandatory, imperative or obligatory statute.
2) Directory or Permissive Statute.

A mandatory statute is one which compels performance of certain things or compels that a
certain thing must be done in a certain manner or form. A directory statute on the other hand,
merely directs or permits a thing to be done without compelling its performance.
C. Classification with reference to object.
A statute may be classified with reference to its object as:
1) Codifying Statute
2) Consolidating Statute.
3) Declaratory Statute
4) Remedial Statute.
5) Enabling Statute.
6) Disabling Statute.
7) Penal Statute.
8) Taxing Statute.
9) Explanatory Statute.
10) Amending Statute.
11) Repealing Statute.
12) Curative or Validating Statute.

Enabling statutes:
An enabling statute is one which enlarges the common law where it is narrow. It makes doing
of something lawful which would not be otherwise lawful. By an enabling act, the legislature
enables something to be done. It empowers at the same time, by necessary implications, to do
the indispensable things for carrying out the object of the legislation1. Acts authorising
compulsory acquisition of land for public benefit of, for legalising public or private nuisance
are instances of enabling statutes. The conditions which have been put by an enabling act for
the public good must be complied with as they are indispensable. Such a statute grants power
to make rules etc. to carry out the purposes of the Act and these rules may provide for a
number of enumerated matters in particular and without prejudice to the generality of the
foregoing provisions.

 Purpose & Effects

We are already through with the definitions and the meaning of enabling statute. It is,
however, important for us to know that enabling statute creates Agency and defines its
purpose and gives power to Agency.

1
Biddi Leaves and Tobacco Merchant Association State of Bombay, AIR 1962 SC 486.
It defines the procedural rules and formalities for all federal agencies and the rule book for
administrative agencies. Although powers differ from agency to agency, it is possible to
make accurate generalizations about the powers of the typical administrative agency.

One of the principles of law with regards to the effects of an enabling statute is that if the
legislature gives the authority of something to be done, it at that same time gives the powers
by all the crucial presumptions and information to accomplish every act which is necessary
for carrying out the purposes in view.

This general rule under the law is that whenever the legislature gives any power to the public
at large to do anything which is public in nature, the legislature also gives all the rights
without which the power would be completely isolated. However, all the above-mentioned
circumstances cannot be implied in Accidental situations.

Construction of Enabling Statute

It is to be noted that the mentioned words in the statute should be compulsorily considered
principally where ‘object of the power’ (which is either increased or introduced) is to put into
operation a specified legal right. There have been many acts which have compulsory effects
like the acts which authorize the compulsory acquisition of land for public purposes. Also,
the acts which deal with public nuisances have the same compulsory effects.

Likewise, by an act of parliament, many other things can be done to an enabling statute which
passed down the powers to public bodies to accomplish the acts which are public in nature
with the perspective to fulfil the requirements with the power otherwise the powers so given
would be meaningless.

Maxim “Expressio unius est excluio alterius” in English means “express enactment shuts
the door to further implications”. In the other words, we can say that it expresses a certain
rule which states that where the legislature expressly lays down, various terms and modes of
dealing with the matter, it excludes any other mode except as specifically authorized.

Under certain cases, the words must be read to cover the case. However, the words so read to
cover it by reasonable construction may sometimes point more exactly to another case. These
cases are clearly within the mischief. Thus, it is important to provide a cloak to the case
rather than make it a casus missus.
However, the right is gone if the legislation lucidly authorizes that the act to be done should
be physically inconsistent with the continuance of an existing right because the act so
mentioned cannot be completed sans repealing the right.

Rules as to Discretionary Powers Given by Enabling Acts

It is not necessary that intention of the Legislature should always be expressed in mandatory
and directory enactments. Sometimes a statute is passed for the purposes of enabling
something to be done – which means that the statute gives a discretionary power to the
authorities, to carry out the purpose of the statute in a manner which they deem fit, after
consideration of the local conditions and other circumstances, as the case may be.
Discretionary power thus conferred by the statutes leaves the done of the power free to use or
not to use it, at its discretion2. But when an enabling act gives a discretionary power to
persons to carry out the purposes of the statutes , discretion is absolute, that is to say. It is the
duty of those persons to carry out that purposes. When such discretion has to be exercised by
a Court of justice, it must be governed by rules and not by honour; it must not be arbitrary,
vague and fanciful but legal and regular3.

However, permissive words are employed by the legislature to confer a power on Court to be
exercised in the circumstances pointed out by the statute, it becomes the duty of the court to
exercise that power on proof of those circumstances. The use of the permissive words in such
cases is the usual courtesy of legislature in dealing with the judicature4. Thus the word “may”
is also capable of being construed as to referring compellable duty, particularly when it refers
to powers conferred on Court5.

Delegated Legislation In Conformity With Enabling Acts

Legislation by the executive branch or a statutory authority or local or other body under the
authority of the competent legislature is called “Delegated legislation”. It permits the bodies
beneath parliament to pass their own legislation. It is legislation made by a person or body
other than Parliament. Parliament, through an Act of Parliament, can permit another person or
body to make legislation. An Act of Parliament creates the framework of a particular law and
tends only to contain an outline of the purpose of the Act. By Parliament giving authority for

2
Digraj Kuer v. A.K. Narayan Singh, AIR 1960 SCC 444(449)
3
Rv. Wilkes, (1770) & Burr, 2527 (2539)
4
Re Neath & Brecon Rly. Co. (1874) 9 Ch. App. 263
5
Ramji Missar, v. St of Bihar, AIR 1963 SC 1088(1092)
legislation to be delegated it enables other persons or bodies to provide more detail to an Act
of Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament),
permit others to make law and rules through delegated legislation. The legislation created by
delegated legislation must be made in accordance with the purposes laid down in the Act. The
function of delegated legislation is it allows the Government to amend a law without having
to wait for a new Act of Parliament to be passed. Further, delegated legislation can be used to
make technical changes to the law, such as altering sanctions under a given statute. Also, by
way of an example, a Local Authority have power given to them under certain statutes to
allow them to make delegated legislation and to make law which suits their area. Delegated
legislation provides a very important role in the making of law as there is more delegated
legislation enacted each year than there are Acts of Parliament. In addition, delegated
legislation has the same legal standing as the Act of Parliament from which it was created.

Importance
There are several reasons why “delegated legislation” is important.

Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can
be amended and/or made without having to pass an Act through Parliament, which can be
time consuming. Changes can therefore be made to the law without the need to have a new
Act of Parliament and it further avoids Parliament having to spend a lot of their time on
technical matters, such as the clarification of a specific part of the legislation.

Secondly, delegated legislation allows law to be made by those who have the relevant expert
knowledge. By way of illustration, a local authority can make law in accordance with what
their locality needs as opposed to having one law across the board which may not suit their
particular area. A particular Local Authority can make a law to suit local needs and that Local
Authority will have the knowledge of what is best for the locality rather than Parliament.

Thirdly, delegated legislation can deal with an “emergency situation”as it arises without
having to wait for an Act to be passed through Parliament to resolve the particular situation.

Finally, delegated legislation can be used to cover a situation that Parliament had not
anticipated at the time it enacted the piece of legislation, which makes it flexible and very
useful to law-making. Delegated legislation is therefore able to meet the changing needs of
society and also situations which Parliament had not anticipated when they enacted the Act of
Parliament.

Grounds On Which Delegated Legislation Can Be Challenged:

A. Enabling or Parent Act is unconstitutional : In India, there is supremacy of the
Constitution and therefore an act passed by the Legislature is required to be in conformity
with the constitutional requirement and if it is found to be in violation of the constitutional
provisions, the court declares it unconstitutional and void. If enabling or parent act (i.e the act
providing for the delegation) is void and subordinate or delegated legislation made under the
act will also be declared to be unconstitutional and therefore void. The limits of the
Constitution may be express and implied.

Express Limit: Articles 13, 245 and 246 provide the express limits of the constitution. Article
13(1) provides that all laws in force in the territory of India immediately before the
commencement of the constitution in so far as they are inconsistent with the provisions of
Part III (fundamental rights) shall, to the extent of the contravention, be void. According to
article 13(2), the state shall not make any law which takes away orabridges the rights
conferred by part III (i.e the Fundamental Rights) and any law made in contravention of this
clause shall, to the extent of the contravention, be void. Article 13(3) makes it clear that for
this purpose, unless the context otherwise requires , law includes any ordinance, order, by –
law, rule, regulation, notification, custom or usage having in the territory of India, the force
of law. The legislature, thus, cannot violate the provisions of part III of the constitution
granting the fundamental rights. If the parent or enabling Act is violative of the Fundamental
Rights granted by part III of the constitution, it will be declared by the court as
unconstitutional and void, and the subordinate or delegated legislation made under the act
will also be held to be unconstitutional and void.

Article 245 makes it clear that the legislative powers of the parliament and that of the state
legislatures are subject to the provisions of the constitution. Parliament may make laws for
the whole or any part of the territory of India and the legislatures of a state make laws for the
whole or any part of the state. No law made by the parliament shall be deemed to be invalid
on the ground that it would have extra territorial operation. The state legislature can make law
only for the State concerned and, therefore, the law made by the state legislature having
operation outside the state would be invalid6. In the matter of Cauvery Water Disputes
Tribunal7, the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 was declared
unconstitutional on certain grounds including the ground that it had extra territorial operation
in as much as it interfered with the equitable rights of Tamil Nadu and Pondicherry to the
waters of Cauvery River.

In short, no law made by Parliament shall be deemed to be invalid on the ground that it would
have extra territorial operation. However, the law made by the state legislature may be
challenged on the ground of extra territorial operation. If the parent act is declared to be
unconstitutional, then the delegated legislation made under such act would also be declared to
be unconstitutional and thus, void. Article 246 makes provisions in respect of the distribution
of powers between the powers between the Parliament and the State legislatures. From article
246 and the seventh schedule, it becomes clear that the subjects have been divided into three
categories – Union list, State list and Concurrent list. Parliament has exclusive power to make
laws with respect to any of the matters or subjects enumerated in the Union list and of the
legislature of any state has power to make laws for such state or any part thereof with respect
to any of the matters or subjects enumerated in the State list. Parliament and State
Legislatures both have power to make laws with respect to any of the matters or subjects
enumerated in the Concurrent List, but In the case of conflict between the law made by
Parliament and a law made by the State Legislature with respect to such matter or subject, the
law made by Parliament shall prevail and the laws made by the State Legislature, to the
extent of repugnancy be void, unless the law made by the State Legislature has received the
assent of the President.

Implied limit: If the Enabling or Parent Act violates the implied limit of the Constitution, it
will be ultra vires the Constitution and therefore It will be void and the delegated legislation
made under the Act will also be unconstitutional and void. The implied limit of the
Constitution Is that essential legislative function entrusted to the legislature by the
Constitution cannot be delegated by it. The essential legislative function consists of the
determination of the legislative policy and its formulation as a rule of conduct. The
legislature delegating its legislative power must lay down the legislative policy and
guidelines regarding the exercise of tin delegated power by delegate. The delegation of
6
Clarence Rly v. Great N. Eastern Rly. (1845) 13 M and W 706 (721) supra.
7 AIR 1962 SC 486
7
1992 AIR 522, 1991 SCR Supl. (2) 497
essential legislative function is taken as abdication of essential legislative function by the
Legislature and this is not permitted by the Constitution

B. Delegated legislation is ultra vires the Enabling Act: The validity of the subordinate or
delegated legislation can be challenged on the ground that it is ultra vires the Enabling or
Parent Act. If the subordinate or delegated legislation made by the delegate is in excess of the
power conferred by the Enabling or Parent Act or is in conflict with the provisions of the
Enabling or Parent Act or is made without following the procedure required by the Enabling
or Parent Act to be followed by the delegate, the delegated or subordinate legislation will be
invalid on the ground that it Is ultra vires the Enabling or Parent Act. The validity of the
exercise of power is tested on the basis of the Prussians as it stands currently and not on the
basis of that it was before.

C. When it is made in excess of the power conferred by the Enabling Act: The subordinate or
delegated legislation is held to be ultra vires the Enabling or Parent Act when it is found to be
in excess of the power conferred by the Enabling or Parent Act. If the delegated legislation is
beyond the power conferred on the delegated by the Enabling Act, it would be Invalid even if
it has been laid before the Legislature. Where an administrative authority Is empowered by
the Enabling Act to make by-laws to regulate market and the authority makes by-law which
prohibits running of cattle market the by-law will be ultra vires the Enabling Act. In S.T.O. v.
Abraham8 the Act empowered the Government to carry out the purposes of the Act the
Government made rule so as to fix the last date for filing the declaration forms by dealers for
getting the benefit of concessional rates on inter-State sales. This rule was held to be ultra
vires the Enabling Act on the ground that the Act empowered the Government for making
rules for prescribing the particulars to be mentioned in the forms and it was not given power
to prescribe a time-limit for filling the form.

D. When delegated legislation is in conflict with the Enabling or Parent Act: When the
delegated legislation is found to be directly or indirectly in conflict with the provisions of the
Enabling Act or Parent Act, it is held to be ultra vires the Enabling or Parent Act. In Delhi
Transport Undertaking v. B.R.I. Hajelay9, a rule was declared Invalid on the ground that it
was in conflict with the provisions of the Enabling or Parent Act. According to Section 92 of

8
STO vs. K.I. Abraham [1967] 20 STC 367
9
1972 AIR 2452
the Delhi Corporation Act. 1957, all persons drawing salary less than 350 rupees per month
shall be appointed only by general Manager of the Delhi Transport Undertaking. According
to Section 95 of the Act, no person can be dismissed by any authority subordinate to the
authority who has appointed him. The rules made under the Act empowered the General
Manager to delegate all his powers to the Assistant General Manager. The rule was held to be
In conflict with the aforesaid provision of the Parent Act. The effect of the rule was that a
person appointed by the General Manager could be dismissed by the Assistant General
Manager. i.e. a person could be dismissed by an authority subordinate to the authority who
had appointed him while Section 95 of the Act provided that no person can be dismissed by
an authority subordinate to the appointing authority. Thus, the rule was in conflict with
Section 95 of the Act. Consequently the rule was held to be invalid.

Enabling Statute Is Ultra Vires The Constitution

The word ‘Ultra' means beyond and ‘Vires' means powers. A simple meaning of this term is
‘beyond powers'; in a strict sense, therefore, the expression is used to mean any act performed
in excess of powers of the authority or the person who performs the act. Judicial control of
delegated may take different forms. There is rule of Constitutionality of delegated legislation.
Doctrine of Ultra vires is another method of such control the courts have formulated yet
another doctrine in which they search for legislative policy or guidance for a valid delegation
of legislative power.

In a broader sense the ultra vires principle provided the justification for constraints upon the
way in which the power given to the administrative agency was exercised. The agency must
comply with rules of fair procedure, it must exercise its discretion to attain only proper and
not improper purposes, it must act on relevant and not irrelevant considerations and it must
not act unreasonably.

As per Halsbury's Laws of England, "Ultra vires" in its proper sense denotes some act or
transaction on the part of a corporation which although not unlawful or contrary to public
policy if done by an individual is yet beyond the legislative powers of the corporations
defined by the statue under which it is formed, or the statues which are applicable to it, or by
its character or memorandum of association. In V.M. Kurian v .State of Kerala10, when the

10
(2001) 4 SCC 215.
State Government of Kerala granted exemption from the operation of the Kerala building
Rules 1984 for the construction of a high rise building in Cochin without the recommendation
of greater Cochin Development authority and the Chief Town Planner as provided in the
rules, the Supreme Court held that the order in ultra vires.

In case of interpretation of statute under which legislative power have been delegated is itself
unconstitutional, then the delegated legislation originating from that statute will also be
unconstitutional. Unconstitutionality may either be due to excessive delegation or breach of a
fundamental right or any other Constitutional provision. For instance, if a statute contains a
delegation clause involving the abridgement of fundamental rights, it is ultra vires the
Constitution. Similarly, if a state legislature delegates the power to make rules on a subject
falling in the union list, it is clearly beyond the powers of the state legislature and hence
unconstitutional. In Chintamon Rao v State of M.P11, the enabling empowered the Collector
to make regulations for regulating or prohibiting the manufacture of bidis during the
agricultural season. The purpose of this provision was to induce the laborers to engage in
agricultural operations during the season and thus to improve production. The collector
totally prohibited the manufacture of bidis during the agricultural season with a view of
diverting the entire labour in to the agricultural sector. The statutory provision was struck
down by the Court as it amounted to an unreasonable restriction upon the fundamental rights
to carry on an occupation guaranteed by Art. 19 (1) (g) of the Constitution. Subordinated
legislation was also held invalid because the enabling provision itself was unconstitutional.

Case Analysis:
CASE ANALYSIS: O. P. Gupta v Union of India and another

CITATION: 2020 Indlaw DEL 1095

FACTS OF THE CASE:

In the case the petitioner filed writ petition under Art. 226 that the Respondent is not allowing
essential goods like vegetables, milk from the borders of Haryana and Delhi and also not
allowing the essential services personnel like doctors, Delhi jal services etc. This is
preventing essential services to reach to other states. This writ petition is filed to illegal
activities of the respondents to infringe the free movement of the people.

11
AIR 1951 SC 118.
ISSUE: Whether the restriction of essential commodities and services is infringement of Art.
19(1) (d).

REASONING:

The Court held that the rules issued by the government during the pandemic should be
followed by the restricting the movement of the essential commodities and services fails the
very reason of public welfare. The areas stated in the petition are non-containment areas so
the essential commodities and services should be allowed. They can be only in quarantine
only if they are tested COVID positive not otherwise. They should be given passes and the
people with passes should be allowed. The guidelines issued by Government

The list of consolidated exemptions as below shall be permitted for cross-border movement
upon production of valid ID card only. It shall also be mandatory to comply with Clause 9(a)
as above at all times and to undergo the procedure mentioned in 9(b) & 9(c) at such
frequency as specified from time to time by the Health department or the undersigned.

(a) Authorized Government officers/staff of offices covered under 8(b) above and belonging
to the PMO (Prime Minister Office), Finance & Defence; Department of Post, Disaster
Management and Early Warning Agencies, National Informatics Centre, Food Corporation of
India.

(b) Those specially issued a Restricted Movement Pass by authorised officers of Government
of India/Haryana government in this behalf.

(c) Ambulances

(d) ATM Cash Vans

(e) LPG, Oil Containers/Tankers

(f) Vehicle with one driver & one helper/security guard for the following:

(i) Supply of grains, eggs/meat/poultry, milk, cereals, lentils & other eatables excluding fruits
and vegetables coming from NCT Delhi.

(ii) Supply of green and dry fodder for animals and poultry, piggery feed.

(iii) Supply of medicines, medical equipment and the raw materials used in manufacturing
thereof.

(iv) Supply of PPE's, Masks, Gloves, Sanitizers, Ventilators and the like
(g) Purely transit logistics movement of essential/non-essential items on National Highways
or State Highways for cargo/raw material/finished goods, however, such vehicles shall not be
allowed to halt in territory of District Sonipat.

(h) Outbound movement from Sonipat of essential/non-essential items on National Highways

or State Highways for vehicles carrying cargo/raw material/finished goods.

It is also held that it is not violative of Art 19. The rules are constitutional.

CONCLUSION:
The Court in this case issued guidelines followed during the pandemic and also allowed the
essential commodities and services to reach to people. It issued guidelines like using passes
etc.. It is also held that the rules issued by the court are not unconstitutional.

CASE ANALYSIS: Dr. K. Moosa S/o Moideen v State of Kerala

CITATION: 2017 Indlaw KER 1966

FACTS OF THE CASES:

Petitioner is the accused in C.C.No.283 of 2017 on the file of the Judicial First Class
Magistrate Court, Nadapuram registered on the basis of a complaint filed by the Drugs
Inspector under Section 11 of the Essential Commodities Act, 1955 alleging violation of
Clause 16 of the Drugs (Price Control) Order, 1995. A complaint was filed by the Drugs
Inspector after CW3 Nazeer has submitted a complaint before him stating that the petitioner's
hospital charged a sum of Rs. 30/- for one vial of tetanus toxoid injection when the Actual
cost was only Rs. 10.35. Preliminary enquiry revealed that CW3 had purchased the said
injection on 25.07.2011 for his spouse who was undergoing treatment in the petitioner's
hospital. CW3 left the country to take up his employment in the Middle East after handing
over the material and documentary evidence to CW4. On 18.10.2011, the complainant had
visited the house of CW5 (wife of CW3). On his request, the drug purchased was produced
and a detailed statement was given by CW5. On 19.10.201 the complainant had inspected the
hospital belonging to the petitioner. It is a proprietorship concern. The hospital was engaged
in retail sale of drugs as per a drug licence. According to the averments in the complaint, the
petitioner had sold one vial of tetanus toxoid injection for an exorbitant price and issued a bill
violating the above said provisions.
ISSUE: Whether the sale of vital medicine for exorbitant price is violation of sec 7 of
essential commodities Act?

REASONING:

The court held that as there is no special provision for issuing a procedure bill in any of the
statutes governing the sale of drugs. It was held the prosecution is not sustained and the
petition is allowed.

CASE NAME: A. S. Parmar v State of Punjab and others

CITATION: 2002 Indlaw SC 2316

FACTS OF THE CASE:

The appellant herein is a Senior Manager in Indian Farmers' Fertilizers Cooperative Limited
at Kandla in the State of Gujarat. The said Society is engaged in manufacturing and selling of
fertilizer. The Government of India in exercise of power under Section 3 of the Essential
Commodities Act, 1955 has framed an order known as the Fertilizer (Control) Order, 1985
for controlling the quality of fertilizer. It appears that the samples of fertilizer sold by the
appellant was taken from stitched bags of fertilizer and thereafter sent to laboratory for
analysis. It is alleged that the laboratory reported that the fertilizer is sub-standard. It is
further alleged that on the strength of the said report the respondent threatened the appellant
to prosecute him.

It is under such circumstances the appellant filed a petition under Article 226 of
the Constitution of India before the Punjab and Haryana High Court challenging the validity
of Clause 19 of the Fertilizer (Control) Order. The case of the appellant was that since Clause
19 does not permit an accused a right to adduce evidence to contradict the report of the public
analyst, the said clause is ultra vires Articles 19 and 21 of the Constitution.

REASONING:

The court held that since no criminal proceedings have been taken against the appellant, there
was no cause of action for the appellant to file a petition under Article 226 of
the Constitution. As and when the appellant is tried in a court of law, it is always open to the
appellant to take such defence as may be permissible under law including defence under
Section 293 CrPC. In that view of the matter, the writ petition filed by the petitioner was
premature and ought not to have been entertained by the High Court.
For the aforesaid reasons, we are not inclined to interfere in the matter. The appeal fails and
is dismissed accordingly. However, we make it clear that in case the appellant is tried in a
court of law, it would be open to him to take such defence as is available to him under law. 

CASE NAME: Amar Chand and Kesar Chand and Ors v. L.D.Gupta

CITATION: 2003 Indlaw DEL 588

FACTS OF THE CASE

The Special Cell of Crime Branch and officials of the Food and Supplies Department
conducted raid at the premises of the petitioner and found 41 bags of Khandsari and 9 bags of
Boora stored therein. At the relevant time a dealer could not possess or store more than a
specified quantity under the Licensing Order issued under the provisions of Essential
Commodities Act. The appellant had no licence to store such quantity of sugar in the
premises. A case under Section 7 of the Essential Commodities Act was registered and after
giving show cause notice to the petitioner, the Collector, Food and Supplies passed an order
directing the confiscation of the stock of 41 bags of Khandsari and 9 bags of Boora and
ordered the same to be disposed of by public auction.

ISSUE: Whether possession and hording of excessive of Sugar is violation of Essential

Commodities Act?

REASONING

The Court held that the Boora and Khandasari are interpreted as Sugar under this provision.
The main objective of this provision for not hoarding sugar to create demand in the market. It
will adversely affect the distribution of the sugar in market. Even though there is no malice
with the petitioners but allowing these kind of activities will adversely affect the fair
distribution in the market. It is illegal to store more than permissible amount of sugar.
Therefore, there is no merits of this petition and it is dismissed.

CASE NAME: National Seed Association of India, New Delhi and others v State of
Maharashtra and others.

CITATION: 2013 Indlaw MUM 1087

FACTS OF THE CASE

In Writ the petitioners challenged the validity of the Maharashtra Cotton Seed (Regulation of
Supply, Distribution, Sale and Fixation of Sale Price) Ordinance, 2009 (the Ordinance)
(published in the official Gazette on 09.05.2009) and the notification dated 10.05.2009 fixing
the prices of BG-I and BG-II cotton seeds. The Ordinance was replaced by an Act, namely
the Maharashtra Cotton Seed (Regulation of Supply, Distribution, Sale and Fixation of Sale
Price) Act, 2009

In Writ the petitioners challenged the validity of Notification dated 14.05.2010 issued by the
State u/s. 10 of the Act. By the Notification the maximum sale price of BG-I and BG-II
cotton seeds was fixed at Rs.650/- and 750/- per packet respectively.

ISSUE:

Whether the sec 10 of the Act is valid?

REASONING

It was held, State while fixing price had taken note of the representation and material so
placed on record by petitioner or such related persons. State had also collected various
information which was necessary to check and control and understand the market position
covering the profit ratio of producers as well as requirement and necessity of controlling of
price of cotton seed. State Govt. is also under obligation to consider submissions and material
placed by parties. As there is no subsequent challenge to notifications, it means that State
Govt. subsequent to impugned notifications/price so fixed, have considered respective
submissions made by petitioners and similarly situated persons from time to time every year.
Therefore, State is definitely performing their part in taking decision of prices based upon the
material as well as situation available at relevant time. Petitions dismissed.

CASE NAME: Suresh Cherian vs District Collector

CITATION: WP(C).No. 32492 of 2009(F)

FACTS OF THE CASE:

In this the petitioner filed a writ stating that the order issued by district magistrate under sec
143 of CrPC is illegal as it is obstructing the peaceful carrying of religious activities in the
church. The respondent 2&3 filed an application before the district magistrate stating that the
petitioner in the guise of prayers using loud speakers and mics without permission causing
public nuisance and also carrying treatment to ill people by physical violence. The petitioner
also claimed police protection as the neighbours are obstructing the peaceful carrying of
prayers in the church.

ISSUE: Whether the order of district magistrate is illegal?

REASONING:

The court held that the order is not illegal as the public nuisance caused by the petitioner can
be observed from the facts of the case. If the petitioner would have only carried prayers
without any other activities can we would have decided that the order is illegal as it is
obstructing peaceful practise of religion but in this case the petitioner is using loud speakers
and mics without permission and also inflicting physical violence on the people which
causing public nuisance to the neighbours. So, the petition is dismissed.

CASE NAME: Abraham Thomas v State of Kerala

CITATION: 2015 Indlaw KER 1284

FACTS OF THE CASE:

The petitioner here files a counter petition against the order issued by sub divisional
magistrate under sec. 133 of CrPC as it was issued without due process. The respondent filed
a complaint before magistrate stating rubble from wall of petitioner is obstructing the drain
thus causing disturbance to the public. The magistrate gave notice to the petitioner to deny
the existence of public right. The petitioner denied the existence of public right by responding
to the notice. But the magistrate without hearing the petitioner based on village officer made
the order absolute.

ISSUE: Whether the order is valid?

REASONING:

The court held that there technical discrepancies in the proceedings which itself against law.
When the denial of public right is given then the magistrate should look into the matter if
there is no public right then the order should be vacated otherwise the order will be made
absolute and as the petitioner is not given fair hearing so the order issued will be set aside.
The magistrate shall give fresh trail for this matter and dispose accordingly.

CASE NAME: A. Thangadurai v (1) District Collector, Kanyakumari

CITATION: 2008 Indlaw MAD 2403

FACTS OF THE CASE:

The petitioner is an owner of two horses who use them as joy ride in beach near triveni
sangam beach. On receiving several complaints the district magistrate imposed ban on horse
ride in the beach. On hearing such order from the newspaper the petitioner filed a petition
before high court as his fundamental rights under Art. 19.

ISSUE: Whether the ban is infringement of fundamental right under Art.19?

REASONING:

The Court held that the order should not be taken as absolute order but as provisional order
and the petitioner should be given hearing. Still the final order is pending an interim order
can be issued for injunction of horse rides in beach. The magistrate cannot sit still when he
have received several complaints from the public so he has to take action. No horse riding
activities can be conducted in the beach till the final order. It is not infringement of Art. 19,
free trade.

CASE NAME: Abdul Aziz Mir v. Javaid Ahmad Khan

CITATION: 2002 Indlaw JK 21

FACTS OF THE CASE:

The brief facts are that an application came to be presented before the District Magistrate,
Srinagar, invoking his jurisdiction u/s. 133 Cr.P.C., for removal of Bandsaw Mill of the
petitioner situated at Iqbal Colony, Zainakoot, Srinagar, on the ground that it has been
installed in the residential area and is a source of noise and pollution and thereby has made
the human life hazardous and difficult. The District Magistrate, Srinagar, endorsed the
application to the subordinate Officers for report. The Patwari in his report has submitted that
the Bandsaw Mill is situated in Khasra. The noise of the Bandsaw, being driven by Diesel
Engine, effects the education of the children living in the nearby houses. The people are
facing difficulty because of noise pollution. The impugned order has been challenged by the
petitioner on the ground that it is not in conformity with the provisions of law laid down in S.
133 to 137 Cr.P.C. The petitioner’s mill is situated even before the residences are build and
the residents only filed complaint due to animosity with the petitioner. The petitioner was not
given fair hearing.

ISSUE: Whether the order issued is valid?

REASONING:

The court held that if a complaint is instituted invoking jurisdiction u/s. 133 Cr.P.C. the
Magistrate is empowered, on taking such evidence as he thinks fit, to pass a conditional order
requiring the person causing such nuisance within the time fixed in the order, to remove such
obstruction. S. 135 Cr.P.C. envisages the issuance of notice to appear before the Magistrate
on a date to be fixed by the conditional order to show cause against the said order. U/s. 137
Cr.P.C. if such person appears and shows cause against the order, it is obligatory upon the
Magistrate to take evidence in the matter treating it as a summons case and on appreciation of
the evidence produced by the parties before the Magistrate, if he is satisfied that the order is
not reasonable and proper, he will stop the proceedings or vice versa.

The Magistrate before passing the impugned order has not followed and adopted the
procedure prescribed by law as contained in the above extracted provisions of law. Any order
passed in violation of the mandatory procedure prescribed by law cannot be maintained and
deserves to be set aside. The order of the Magistrate being not sustainable, is set aside.

CASE NAME: Amarendra Routray v Sarat Ch. Mohanty and others

CITATION: 2016 Indlaw ORI 422

FACTS OF THE CASE:

The petitioners filed suit against the order by Additional Deputy Commissioner of Police-
cum-Executive Magistrate to shift their fabrication on receiving the complaints from
residents of the place. It was causing public nuisance as it was polluting the water and
causing noise pollution which disturbing the education of children and causing health
problems. They filed against the order they erred in conducting proceedings under law.

ISSUE: Whether the order is valid?

REASONING:

Held, Additional Deputy Commissioner of Police-cum-Executive Magistrate has taken into

consideration inter-alia reports furnished by State Pollution Control Board and local police.
Deputy Environment Scientist of State Pollution Control Board pursuant to public complaint
inspected workshop and observed inter-alia that manufacturing process carried on in
workshop included cutting drilling hammering welding and painting of steel structures and
operation of such unit is detrimental to convenience of local inhabitants in leading normal life
inasmuch as workshop is located in prime residential area. Therefore, there is no patent
illegality or impropriety found in impugned order of Magistrate. Petition disposed of.

CASE NAME: Amritpal Singh v State of Punjab and others

CITATION: 2011 Indlaw PNH 1218.

FACTS OF THE CASE:

The petitioner filed a petition against the order of district magistrate stating to remove his
business from the residential premises as no industry is allowed near residential premises as
his business was creating lot of noises. He pleaded that the order stating no industry allowed
in residential premises is illegal as he is carrying the business from last 10 years.

ISSUE: Whether restriction of industrial activity in residential area was sustainable?

REASONING:

It was held that the business installed by the petitioner was a printing press. In which heavy
bricks were used for folding of envelopes even the printing machine is making heavy and
loud noises. So the objective of the order was satisfied and also according the photographs
submitted it can be deduced that the printing press was situated in residential area.
Previously, there were no complaints because the petitioner used only manual labour but now
he is using machines. As there is nuisance the order is sustained. The petition is disposed.

CASE NAME: Anil S/o Appukuttan Pillai v State of Kerala

CITATION: 2016 Indlaw KER 638

FACTS OF THE CASE:

The petitioner in this filed suit against the order of magistrate stopping him from cutting trees
standing in his property as a complaint filed by respondent 2 that the tree waste falling in his
property and also causing noise pollution. The magistrate issued only based on the report of
village officer. He did not give him any chance of hearing and he did not considered
evidences submitted by him. He is plead that the impugned order is illegal.

ISSUE: Whether the order is illegal?

REASONING:
Held, Magistrate was impressed with order of Lok Adalat by which Petitioner had agreed to
cut and remove trees provided that same is implemented through Village officer. s. 251 of
CrPC says that when Accused appears before Magistrate, particulars of offence of which he
is Accused shall be stated to him and he shall be asked if he has any cause to show why he
should not be convicted. S. 138(1) of CrPC states that Magistrate shall take evidence is
mandatory and that is condition precedent to making of conditional order absolute. Report or
information received by Magistrate before passing conditional order is no evidence against
party. Conditional order cannot be made absolute without party being called upon to
substantiate allegation, which necessitated passing of conditional order, by producing legal
evidence. Magistrate was persuaded in no small measure by his personal inspection and order
of Lok Adalat. Views of Magistrate are no substitute for legal evidence that complainant was
required to produce before Magistrate. Local inspection conducted by Magistrate cannot be
basis to rest his final decision nor can order of Lok Adalat. Magistrate cannot, without calling
upon Respondent to adduce evidence, make order absolute relying on his own inspection.
Petition allowed.

CASE NAME: Aryan Billiard and Pool Parlour and Fast Food Corner and others v State of
Himachal Pradesh and others.

CITATION: 2011 Indlaw HP 371

FACTS OF THE CASE:

Commercial Hall was run as 'Billiards and Pool Parlour' by petitioners in partnership, with
original lessee respondent No.2 as per Partnership Deed. A Complaint filed u/s. 133 of CrPC
before Trial Court alleged that petitioners who were owner of said Hall had started Billiard
Games and students of nearby areas regular visitors in hall. Due to unlawful gathering of
students, families and girls students of area were always insecure and frightened. The
petitioners plead the magistrate did not give emphasis to evidence of petitioners and also did
not conduct any enquiry. The Trial Court passed order against petitioners that Billiard Games
was creating nuisance to general public and also disturb public tranquillity. On revision,
Revisional Court uphold order of Trial Court which was challenged by petitioners. Hence
instant petition.

ISSUE: Whether the magistrate committed procedural discrepancies which make the order
invalid?
REASONING:

Held, s. 133 of CrPC empowers only passing of order in accordance with provisions of s. 133
of CrPC which says that Magistrate may make conditional order requiring person causing
such alleged obstruction or nuisance etc to remove same within time to be fixed in that order.
It is only after passing of such order that further proceedings have to be taken by serving of
said order on concerned person and person against whom such order is made has to comply
said order within time specified. S. 136 of CrPC reveals that if any person does not perform
such act or appear and show cause, he shall be liable to penalty prescribed in s. 188 of IPC
and order shall be made absolute. Court concluded that issuance of preliminary order in terms
of s. 133(1) of CrPC is sine-quo-non and is illegal and unsustainable in law. No preliminary
order appears to have issued and notified to respondents by Trial Court in accordance with
law, final order of Trial Court is wrong and illegal and order passed by Revisional Court
upholding order of Trial Court is hereby set- aside. Court concluded that case is remanded
back to Trial Court with direction to resume proceedings from stage of order by
issuing/serving preliminary order to respondents including petitioners in terms of s. 133(1) of
CrPC and to dispose of matter in accordance with law. Order accordingly.

COMMENT:

The magistrate in this case did not do any enquiry to see whether the nuisance is happening.
Without any enquiry he is issued order against the petitioners. A perusal of ss. 133 and 138 of
CrPC reveals that it is function of Magistrate to conduct an enquiry and to decide as to
whether there was a reliable evidence or not to come to conclusion.

CASE NAME: Ajoy Palchowdhuri v State of West Bengal and Another

CITATION: 2009 Indlaw CAL 449

FACTS OF THE CASE:

The magistrate in this case while dealing with complaint filed under sec. 144 of CrPC passed
the proceeding dropping the ground on civil dispute which is being dealt by the civil court.
The petitioners pleaded that the order is illegal as it ultra vires of the powers of the
magistrate.

ISSUE: whether the order is valid?

REASONING:
Held, provisions of s. 144 of the Code does not confer any power of the Executive Magistrate
to adjudicate or decide any dispute of civil nature or question of title to properties or
entitlements to rights but at the same time in cases where such disputes or titles or
entitlements to right have already been adjudicated and have become the subject-matter of
judicial pronouncement and decrees of Civil Court of competent jurisdiction then in the
exercise of power u/s. 144 of the Code the Court must have due regard to the order passed by
the Civil Court, although it would be the paramount consideration to maintain the public
peace and tranquillity. As dispute is of civil in nature because already the said dispute is the
subject-matter of a suit pending before a competent Civil Court and in connection therewith
the prayer for injunction made on behalf of the petitioner has been rejected. Thus, it cannot be
said that the learned Judge acted contrary to the law. Revisional application dismissed

COMMENT:

The court held in this case that the magistrate gave the decision ultra vires to his powers. The
magistrate cannot deal civil dispute while dealing with the matter under s. 144.

CASE NAME: Acharya Citsvarupananda Avadhuta v. State of West Bengal

CITATION: 2016 Indlaw CAL 157

FACTS OF THE CASE:

The superindent of police taking suo moto complaint apprehending breach of peace and
magistrate based on complaint issued an order under s. 144 of CrPC restricting the entry and
assembly of the people of the petitioner. But the people of the petitioner intentionally
breaking the order entered in to the grounds and assembled. As they intentionally broke the
order the charge sheet was filed under s. 188 of IPC. The petitioner pleaded that the police
cannot file as they only filed suo moto complaint.

ISSUE: Whether the charge sheet is sustainable?

REASONING:

Held, Inspector of police has lodged complaint suo motu whereupon offence was registered
by him u/s. 188 of IPC and some other Sections of IPC and challan has been filed before
Court who has taken cognizance. HC held that challan filed by police on basis of some
information of police officer would not partake character of complaint as provided u/s. 2(d),
because it does not include police report. HC held that in present case ingredients of offences
u/ss. 188,120B,506 IPC are conspicuously missing, while registration of offence u/s. 188 of
IPC by police is expressly barred, since procedure as specified u/s. 195(1)(a) of CrPC has not
been followed. Hence, filing of charge-sheet before Court of Chief Judicial Magistrate, is
clearly abuse of process of law, hence, charge sheet filed against petitioner is quashed.
Petition allowed.

COMMENT:

The police in this abused their power. If proceedings/prosecution clearly appears to be abuse
of process of law then inherent power of HC u/s. 482 of CrPC should be invoked.

CASE NAME: All India Trade Union Congress, Represented By General Secretary v
Neyveli Lignite Corporation Limited and Others

CITATION: 2010 Indlaw MAD 618

FACTS OF THE CASE:

The petitioner Trade Union sought to quash the order of the second respondent -Revenue
Divisional Officer-cum-Sub Divisional Magistrate. By the said order, the second respondent,
who is also the Sub-Divisional Magistrate put a seal in the office premises of the petitioner
Trade Union.  It is the stand of the second respondent that the said premises was given to be
used as a Trade Union office of United Workers Union by the third respondent and had given
control over the said building. Subsequently, difference of opinion have been cropped up
between two factions. The said officer called the parties for a discussion and no compromise
was arrived at during the talks. Therefore, the officer felt that there is scope for clashes
between two groups, which may likely to create problem and public peace may be hindered.
In order to maintain law and in view of the urgency of the situation, he exercised power under
Section 144 of Code of Criminal Procedure and directed the Tahsildar, Panruti to put a seal to
the building.

It was pleaded that the Action of the respondents in preventing the Activities of the petitioner
Union is violative of Article 19(1)(a) of the Constitution. It was further submitted that any
order passed under Section 144 Cr.P.C. will be valid only for a period of two years and it has
no validity beyond that date. Therefore, the petitioner gave a representation and requested
them to take further action to revoke the order passed under Section 144 Cr.P.C.

ISSUE: Whether the order is illegal?

REASONING:

It was held that based on the facts of the case the order issued is not valid till now as the
dispute happened long ago and also the petitioners are residing in the premises. The court do
not want to go into the merits of the case and according to sec. 144(4) any order issued under
sec. 144 shall not be valid more than 2 months. Therefore, in the light of Section 144(4) and
the order of the second respondent RDO having come to an end by virtue of the orders passed
by this Court in Crl.R.C.No.577 of 2009 dated 20.08.2009, the seal affixed in the premises of
the petitioner Union should have been removed and the possession should have to be handed
over to the petitioner Union.

CASE NAME: Anand K. Mishra v Delhi Police and others

CITATION: 2013 Indlaw DEL 2812

FACTS OF THE CASE:

In this a PIL was filed against the order issued u/s 144 of CrPC to avoid darna near India
gate, Central Vista lawns, Rajpath & Connaught Place as unconstitutional, illegal and ultra
vires on the ground that it imposed an unreasonable restriction on the public. Petitioner also
prays that the Court should issue/frame guidelines for imposition of restrictions under S.
144 Cr.P.C.

ISSUE: Whether the order is unconstitutional?

REASONING:

The court held that the order as safeguard not to create any violence against peaceful
protesters. As the protest is happening in the public places it may cause traffic problems. The
protest should be taken without causing any inconvenience to the public. If any extreme
measures taken by the authorities during places of s. 144 then the petitioner can approach
appropriate authority. The order is not unconstitutional as it is not curtailing the freedom of
speech.

COMMENT:

In this case the Court explained the difference between the abuse of power and safeguards.
The principles held in In Re Ramalila maidan case are only applicable when any violence is
used during the peaceful protest. The freedom of speech has reasonable restrictions.
CASE NAME: A.S.Sethulakshmi vs State Bank Of Travancore

CITATION: WP(C).No. 32492 of 2010(J)

In this the petitioner filed a writ stating that the order issued by district magistrate under sec
143 of CrPC is illegal as it is obstructing the peaceful carrying of religious activities in the
church. The respondent 2&3 filed an application before the district magistrate stating that the
petitioner in the guise of prayers using loud speakers and mics without permission causing
public nuisance and also carrying treatment to ill people by physical violence. The petitioner
also claimed police protection as the neighbours are obstructing the peaceful carrying of
prayers in the church.

ISSUE: Whether the order of district magistrate is illegal?

REASONING:

The court held that the order is not illegal as the public nuisance caused by the petitioner can
be observed from the facts of the case. If the petitioner would have only carried prayers
without any other activities can we would have decided that the order is illegal as it is
obstructing peaceful practise of religion but in this case the petitioner is using loud speakers
and mics without permission and also inflicting physical violence on the people which
causing public nuisance to the neighbours. So, the petition is dismissed.

CASE NAME: Civilian Welfare and Development Trust v Nidhi Srivastava, IAS and another

CITATION: 2020 Indlaw DEL 841

FACTS OF THE CASE:

The petitioners are trust who acquired licences for supplying of essential commodities to the
people in need but after outbreak of COVID 19 they were stopped by the authorities as their
office is situated in the containment zone. No one is allowed to move from containment zone.
They filed petition for contempt of court as they obtained passes by the order of Court.

ISSUE: whether the authorities committed contempt of court?

REASONING:
The court held that it is deemed appropriate to note that in the present situation of crisis,
following the n-COVID-2019 pandemic with which, indeed, the whole world is concerned,
the enforcement of isolation measures, by the Government, is aimed at ensuring, as far as
possible, limited exposure, of the country and its denizens, to the n-COVID-2019 virus.
Judicial notice may be taken of the fact, apparent at ground level, that the Central, as well as
the State Governments - including the GNCTD - are straining every sinew, in achieving this
aim and are committed to making no compromises, whatsoever, on that score. We have, as it
is, naysayers aplenty, and it is the duty of courts to step in and ensure that the efforts, of the
executive administration, to somehow tide over the crisis, are not subjected to roadblocks in
the form of abortive and ill-conceived litigative exercises. This court, were it to at all
entertain the present contempt petition would, in my view, be acting in eminent opposition to
public interest. Petition is dismissed.

COMMENT:

The court did a great job in this case by not encouraging litigations which blocking the work
of authorities by minute reasons. During this pandemic we all should support Government
authorities rather than harassing them with litigations.