# THE S\V ADESHI COTTON MILLS CO. LIMITED v. THE STATE OF U. P. AND OTHERS

- **Citation:** [1962] 1 S.C.R. 422
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 327 of 1958
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. N. W ANCHoo, K. C. DAs GUPTA, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-s-v-adeshi-cotton-mills-co-limited-v-the-state-of-u-p-and-others-2133
- **Pages:** 16

## Headnote

Industrial Dispute-Delegated Legislation-Statute authorising Government to appoint industrial co11rts and lay down procedure
-Validity of-Condition precedent to making of order--Recital
Order, if necessary-Failure to sd out condition in order-1"1fect of
-Affidavit showing fulfilment of condition, if admissible -U. P.
Industrial Disputes Act, I947 (28 of J94J), s. 3(c), (d) and (g)-
G. 0. No. 6r5 dated March I5, r95r.
Clauses (c), (d) and (g) of s. 3 of the U. P. Industrial Disputes Act, i947, empower the State Government to make provision, by general or special order, for appointing industrial
courts, for referring any industrial dispute for conciliation or
adjudication in the manner provided in the order and for any
incidental or supplementary matters which appear to the State
Government necessary or expedient for the purposes of the
order. Section 3 provides that such a general or special order is
to be made if, in the opinion of the State Government it is
necessary or expedient to do so for securing the public safety or
convenience, or the maintenance of public order or supplies and
services essential to the life of the community, or for maintaining employment. On March Is. I951, the State Government
made a general order No. 615 under these provisions but did not
recite in the order its opinion as to the existence of the conditions prescribed in s. 3.
A reference of an;industrial dispute
was made under the G. 0. and an award was given against the
appellant. The appellant contended that the G. 0. setting up
the industrial tribunals was invalid as s. 3 of the Act was unconstitutional as it delegated essential legislative functions to the
Government so far as els. (c), (d) and (g) were concerned and
that the G. 0. was bad as the condition precedent for its formulation was not recited in the order itself. The respondent filed
an affidavit that Government had formed the requisite opinion
before making the G. 0.
Held, that s. 3 was not unconstitutional as there was no
delegation of essential legislative functions to the Government.
The legislature bas indicated its policy and has made it a binding rule of conduct. Section 3 Jays down the conditions in which
the Government is to act; it lays down that Government may
make general or special order if the conditions are satisfied; it
•
\
1 S.C.R. SUPREME COURT REPORTS
423
also provides what those ordrrs are to contain. All. that is left
r96r
to the Government is to provide by subordinate rules for carrying out the purpose of the legislation.
The Swadeshi
Cotton 2lfills
In re The Delhi Laws Act, r9r2, (1951] S.C.R. 747 and Queen
co. Limited
v. Burak, (1878) L.R. 5 I.A. 178, applied.
v.
Held, further, that the G. 0. was valid and the failure to The State of u. P.
mention the condition precedent in the order itself was remedied
&. Others
by the filing of the affidavit. Where a condition precedent has
to be satisfied before a subordinate authority can pass an order,
(executive or in the nature of subordinate legislation), it is
not necessary that the satisfaction of the condition should be
recited in the order itself, unless the statute requires it. But
it is desirable that it should be so mentioned for then the presumption that the condition was satisfied would immediately
arise and the bnrden would be on the persons challenging the
order to show that the recital is not correct. Even when the
recital is not made in the order, it will not become void ab
initio and only a further burden is cast on the authority passing the order to satisfy the court by other means, e.g., by filing
an affidavit, that the condition precedent was satisfied.
The State of Bombay v. Purushottam ] og Naik, [1952] S.C.R.
674, Biswabhusan Naik v. The State of Orissa, [1955] l S.C.R. 92
and The State of Bombay v. Bhanji Munji, [1955] l S.C.R. 777,
applied.
King Emperor v. Sibnath Banerjee, [1944] F.C.R. 42 and
King Emperor v. Sibnath Banerjee, [1945] F.C.R. 216, referred to.
Wichita Railroad & Light Company v. Pub

## Text

Af arch TJ.
422
SUPREME COURT REPORTS
[1962]
THE S\V ADESHI COTTON MILLS CO. LIMITED
v.
THE STATE OF U. P. AND OTHERS
(And Connected Appeals)
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. N. W ANCHoo, K. C. DAs GUPTA and
N. RAJAGOPALA AYYANGAR, JJ.)
Industrial Dispute-Delegated Legislation-Statute authorising Government to appoint industrial co11rts and lay down procedure
-Validity of-Condition precedent to making of order--Recital
Order, if necessary-Failure to sd out condition in order-1"1fect of
-Affidavit showing fulfilment of condition, if admissible -U. P.
Industrial Disputes Act, I947 (28 of J94J), s. 3(c), (d) and (g)-
G. 0. No. 6r5 dated March I5, r95r.
Clauses (c), (d) and (g) of s. 3 of the U. P. Industrial Disputes Act, i947, empower the State Government to make provision, by general or special order, for appointing industrial
courts, for referring any industrial dispute for conciliation or
adjudication in the manner provided in the order and for any
incidental or supplementary matters which appear to the State
Government necessary or expedient for the purposes of the
order. Section 3 provides that such a general or special order is
to be made if, in the opinion of the State Government it is
necessary or expedient to do so for securing the public safety or
convenience, or the maintenance of public order or supplies and
services essential to the life of the community, or for maintaining employment. On March Is. I951, the State Government
made a general order No. 615 under these provisions but did not
recite in the order its opinion as to the existence of the conditions prescribed in s. 3.
A reference of an;industrial dispute
was made under the G. 0. and an award was given against the
appellant. The appellant contended that the G. 0. setting up
the industrial tribunals was invalid as s. 3 of the Act was unconstitutional as it delegated essential legislative functions to the
Government so far as els. (c), (d) and (g) were concerned and
that the G. 0. was bad as the condition precedent for its formulation was not recited in the order itself. The respondent filed
an affidavit that Government had formed the requisite opinion
before making the G. 0.
Held, that s. 3 was not unconstitutional as there was no
delegation of essential legislative functions to the Government.
The legislature bas indicated its policy and has made it a binding rule of conduct. Section 3 Jays down the conditions in which
the Government is to act; it lays down that Government may
make general or special order if the conditions are satisfied; it
•
\
1 S.C.R. SUPREME COURT REPORTS
423
also provides what those ordrrs are to contain. All. that is left
r96r
to the Government is to provide by subordinate rules for carrying out the purpose of the legislation.
The Swadeshi
Cotton 2lfills
In re The Delhi Laws Act, r9r2, (1951] S.C.R. 747 and Queen
co. Limited
v. Burak, (1878) L.R. 5 I.A. 178, applied.
v.
Held, further, that the G. 0. was valid and the failure to The State of u. P.
mention the condition precedent in the order itself was remedied
&. Others
by the filing of the affidavit. Where a condition precedent has
to be satisfied before a subordinate authority can pass an order,
(executive or in the nature of subordinate legislation), it is
not necessary that the satisfaction of the condition should be
recited in the order itself, unless the statute requires it. But
it is desirable that it should be so mentioned for then the presumption that the condition was satisfied would immediately
arise and the bnrden would be on the persons challenging the
order to show that the recital is not correct. Even when the
recital is not made in the order, it will not become void ab
initio and only a further burden is cast on the authority passing the order to satisfy the court by other means, e.g., by filing
an affidavit, that the condition precedent was satisfied.
The State of Bombay v. Purushottam ] og Naik, [1952] S.C.R.
674, Biswabhusan Naik v. The State of Orissa, [1955] l S.C.R. 92
and The State of Bombay v. Bhanji Munji, [1955] l S.C.R. 777,
applied.
King Emperor v. Sibnath Banerjee, [1944] F.C.R. 42 and
King Emperor v. Sibnath Banerjee, [1945] F.C.R. 216, referred to.
Wichita Railroad & Light Company v. Public Utilities Commission of the State of Kansas, (1922) 67 L. Ed. 124, Herbert Mahler
v. Howard Eby, (1924) 68 L. Ed. 549 and Panama Refining Company v. A. D. Ryan, (1935) 79 L. Ed. 446, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
327 of 1958.
Appeal from the judgment and decree dated March
6, 1956, of the Allahabad High Court in Civil Misc.
Writ Petition No. 967 of 1953.
WITH
CIVIL APPEALS Nos. 363 to 369 of 1958.
Appeals from the judgments and decrees dated
·February 1, 1957, of the Allahabad High Court i.n
Civil Misc.
Writ Petitions Nos. 51 (Lucknow Bench),
523, 524, 607, 632, 633 and 634 of 1955 .
. G. S. Pathak and S.P. Varma, for the appellant (In
C. A. No. 327 of 1958).
424
SUPREME COURT REPORTS
[1962)
r96r
C. B. Agarwala, G. C. Mathur and C. P. Lal, for
The Swadeshi
respondents Nos. 3 to 4 (In C. A. No. 327 of 1958).
Collon Mills
H. N. Sanyal, Additional Solicitor-General for India,
co. Limited
H. S. Brar, S. N. Andley, J.B. Dadachanji, Rameshv.
war Nath and P. L. Vohra, for the appellants (In C.
The State of u. P. As. Nos. 363 to 369 of 1958).
&-> Others
C. B. Agarwala and O. P. Lal, for respondent No.
1 (In C. As. Nos. 363 to 369 of 1958).
,..
Bhawani Lal and Dharam Bhusan, for respondent
No. 4 (In C. A. No. 369 of 1958).
J. P. Goyal, for respondent No. 4 (In C. As. Nos.
366 and 368 of 1958 ).
S. 0. Das in person, for respondent No. 4 (In C. A.
No. 367 of 1958).
1961.
March 17.
The Judgment of the Court was
delivered by
wanchoo J.
'VANCHOO, J.-This group of appeals raises a question about the constitutionality of s. 3 of the United
Provinces Industrial Disputes Act, 194 7, (U. P.
XXVIII of 1947), (hereinafter referred to as the Act)
and the validity of two general orders passed thereunder on March 15, 1951. The appellants ar~ certain
industrial concerns. There were disputes between
them and their workmen which were referred for
adjudication to industrial tribunals alleged to have
been set up under the general orders of March 15,
1951. Certain awards were passed which were taken
in appeal by the present appellants to the Labour
Appellate Tribunal and they failed there also.
They
then filed petitions under Art. 226 of the Constitution
in the Allahabad High Court challenging the constitutionality of s. 3 of the Act and the validity of the
two general orders passed on March 15, 1951, by
which industrial tribunals were. set up. The High
Court held that s. 3 of the Act was constitutional. It .
however held that the two general orders dated
March 15, 1951, were invalid; but it went on to hold
that orders of reference passed in these cases were
special orders as envisaged under s. 3 of the Act anq
were therefore not invalid; in consequence it dismissed
,
•
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1 s.c.R. SUPREME COURT REPORTS
425
the petitions. The appellants then a pp lied for and
r96r
obtained certificates for leave to appeal, and that is
The Swadeshi
how the matter has come up before us.
Cotton Mills
It is unnecessary to set out the facts further in resco. Limited
pect of these appeals, as the only points argued before
v.
us are about the constitutionality of s. 3 and the vali- The state of u. P.
dity of the two general orders of 1951 and also of the
& Others
references made in these cases. It is not disputed that
Wanchoo ].
if the appellants fail on these points their appeals in
this Court must fail.
We shall therefore first take up
the question of the constitutionality of s. 3 of the Act.
The relevant provision of s. 3 in 1951 with which
we are concerned was in these terms:-
"If, in the opinion of the State Government it is
necessary or expedient so to do for securing the
public safety or convenience, or the maintenance of
public order or supplies and services essential to the
life of the community, or for maintaining employment, it may, by general or special order, make
provision-
(c) for appointing industrial courts;
(d) for referring any industrial dispute for conciliation or adjudication in the manner provided in
the order;
··································································
(g) for any incidental or supplementary matters
which appear to the State Government necessary or
expedient for the purposes of the order:
"
································································ .
The main contention of the appellants.is thats. 3
is unconstitutional as it delegates essential legislative
function to the Government so far as els. (c), (d) and
(g) are concerned. Reliance in this connection is
placed on the following observations of Kania C. J.
in In re The Delhi Laws Act, 1912 (1), where he was
considering the meaning of the word "delegation":-
"When a legislative body passes an Act it has
exercised its legislative function.
The essentials of
such function are the determination of the legislative policy and its formulation as a rule of conduct.
(1) [1951] S.C.R. 747, 767.
s+
The Swadeshi
Cotton ..1l!ills
Co. Limited
v.
The State of U. P.
if>. Others
Wanchoo ].
426
SUPREME COURT REPORTS
[1962]
These essentials are the characteristics of a legislature by itself ......... Those essentials are preserved,
when the legislature specifies the basic conclusions
of fact, upon ascertainment of which, from relevant
data, by a designated administrative agency, it.
ordains that its statutory command is to be effective. The legislature having thus made its laws, it
is clear that every detail for working it out and for
carrying the enactments into operation and effect
may be done by the legislature or may be left to
another subordinate agency or to some executive
qfficer.
While this also is sometimes described as a
delegation of legislative powers, in essence it is
different from delegation of legislative power which
means a determination of the legislative policy and
formulation of the same as a rule of conduct."
To the same effect were the observations of
Mukherjea J. in that case at p. 982:
"The essential legislative function consists in the
determination or choosing of the legislative policy
and of formally enacting that policy into a binding
rule of conduct. It is open to the legislature to
formulate the policy as broadly and with as little
or as much details as it thinks proper and it may
delegate the rest of the legislative work to a subordinate authority who will work out the details
within the framework of that policy. 'So long as a
policy is laid down and a standard established by
statute no constitutional delegation of legislative
power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which
the legislation is to apply'."
What we have to see therefore is whether the legislature in this case performed its essential legislative
function of determining and choosing the legislative
policy and of formally enacting that policy into a
binding rule of conduct. It was open to the legislature to formulate that policy as broadly and with as
little or as much details as it thought proper. Thereafter once a policy is laid down and a standard established by statute, there is no question of delegation of
'
•
1 S.C.R. SUPREME COURT REPORTS
427
legislative power and all that remains is the making
z96z
of subordinate rules within prescribed limits which
The Swadeshi
may be left to selected instrumentalities. If therefore
Cotton Mills
the legislature in enacting s. 3 has chosen the legislaCo. Limited
tive policy and has formally enacted that policy into
v.
a binding rule of conduct, it could leave the rest of The State 0! U. P.
the details to Government to prescribe by means of
'"' others
subordinate rules within prescribed limits. Nows. 3
Wanchoo J.
lays down under what conditions it would be open to
Government to act under that section; it also lays
down that the Government may act by passing general or special order, once those conditions are fulfilled;
it also provides what will be contained in the general
or special order of Government. The power given to
Government is inter alia to appoint industrial courts,
to refer any industrial dispute for conciliation or
adjudication in the manner provided in the order, and
to make any incidental or supplementary provision
which may be necessary or expedient for the purposes of the order. Thus the legislature has indicated its
policy and has made it a binding rule of conduct. It
has also indicated when the Government shall act
under s. 3 and how it shall act. It has further indicated what it shall do when it acts under s. 3. In these
circumstances we are of the opinion that it cannot be
said that the delegation made by s. 3 is excessive and
goes beyond permissible limits. The order to be passed by the Government under s. 3 would provide, inter
alia, for appointment of industrial courts, for referring
any industrial dispute for conciliation or adjudication,
and for incidental or supplementary matters which
may be necessary or expedient.
The Government
will have to act within those prescribed limits when it
passes an order under s. 3 which will have the force
of subordinate rules. What has been urged on behalf
of the appellants is that the section does not indicate
what powers the industrial courts will have, what will
be the qualifications of persons constituting such courts
and where they will sit; and it is urged that these are
essential matters which the legislature should have
provided for itself. Reference in this connection was
made to the observations of the Privy Council in
428
SUPREME COURT REPORTS
[1962]
x96z
Queen v. Burak (1), which was a case of conditional
legislation. The Privy Council observed there that
The Swadeshi
cotton Mills
the proper legislature having exercised its judgment
co. Limited
as to place, person, laws and powers and the result of
v.
that judgment having been conditional legislation as
The State of u. P. to all these things, the legislation would be absolute
&- Others
as soon as the conditions are fulfilled. These observaWanchoo 1.
tions have in our opinion nothing to do with such
matters of detail as the place where a court or tribunal will sit or the qualifications of persons constituting the tribunal; they refer to more fundamental
matters when the words "place" and "person" are used
therein.
The ·place there must mean the area to
which the legislation would apply; and so far as that
is concerned, the legislature has determined the area
in this case to which s. 3 will apply, namely, the
whole of the State ofUttar Pradesh. Similarly, the
word "person" used there refers to persons to whom
legislation will apply and that has also been determined by the legislature in this case, namely, it will apply
to employers and employees of industrial concerns.
We have already said thatthe conditions under which
the order will be passed have also been set out in the
opening part of s. 3, and how the Government will act
is also set out, namely, by referring any industrial
dispute that may arise for conciliation or adjudication.
As to the power of the industrial court that in our
opinion is also provided by s. 3, namely, that an
industrial court will adjudicate on the industrial dispute referred to it. Therefore all that was left to the
Government to provide was to set up machinery by
means of a general order which has the force of subordinate rules to carry out that legislative policy
which has been enacted in broad details in s. 3 and
has been formally enacted into a binding rule of conduct. We are therefore of opinion that s. 3 is not
unconstitutional in any manner, for there is no delegation of essentials of legislative function thereunder. AU
that has been left to the Government by that section
is to provide by subordinate rules for carrying out the
purpose of the legislation. We must therefore reject
(1) (1878) L.R. 5 !.A. 178.
-·
·t
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1 S.C.R. SUPREME COURT REPORTS
429
the contention that s. 3 is unconstitutional on the
'96'
ground that it suffers from the vice of excessive delegaThe Swadeshi
tion.
Cotton Mills
This brings us to the validity of the general order
co. Limited
No. 615 of March 15, 1951, passed under s. 3.
The
v.
preamble to that order was in these terms:-
The state of u. P.
"In exercise of the powers conferred by clauses
& Others
(b), (c), (d) and (g) of section 3 and section 8 of the
Wanchoo J.
U. P. Industrial Disputes Act, 1947, (U. P. Act
No. XXVIII of 1947) and in supersession of
Government order No. 78l(L)/XVIII dated March
10, 1948, the Governor is pleased to make the following order, and to direct, with reference to section 19
of the said Act, that notice of this Order be given
by publication in the Official Gazette."
Then follows the order setting up conciliation boards
for the purpose of conciliation and industrial tribunals
for the purpose of adjudication. The main contention
on behalf of the appellants is that s. 3 prescribes certain conditions precedent before an order could be
passed thereunder and those conditions precedent
must be recited in the order in order that it may be a
valid exercise of the power conferred by s. 3.
Now
there is no doubt that s. 3 gives power to the State
Government to make certain provisions by general or
special order, if, in its opinion, it is necessary or
expedient so to do for securing public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the com-
'
munity or for maintaining employment. The forming
of such opinion is a condition precedent to the making
of the order. The preamble to the second order also
does not contain a recital that the State Government
had formed such opinion before it made the order. It
is therefore contended on behalf of the appellants that
the orders were bad as the condition precedent for
their formulation was not recited in the orders themselves. At a later stage the appellants also contended
_.,
that in any case the orders were bad because as a fact
A
they were passed without any satisfaction of the State
Government as required under s. 3, though no affidavit
was filed by the appellants in this behalf in support
430
SUPREME COURT REPORTS
[1962]
r96r
of this averment. Unfortunately, the State also filed
no affidavit to show that the conditions precedent proThe Swadeshi
b
Cotton Mills
vided in s. 3 had een complied with, even though
co. Limited
there was no recital thereof on the face of the order.
v.
We should have expected that even though the appelThe State of u. P. lants did not file an affidavit in support of their case
"' Others
on this aspect of the matter, the State would as a
matter of precaution have filed an affidavit to indicate
Wanchoo ].
d
whether the con itions precedent set ont in s. 3 had
been complied with, considering that it was a general
order which was being attacked under which a large
number of adjudications must have taken place. The
High Court has commented on this aspect of the matter and has said that the State Government did not
file any affidavit in this connection to show that as a
matter of fact the State Government was satisfied as
required by s. 3 even though there was no recital of
that satisfaction in the order itself. Taking into
account, however, the importance of the matter, particularly as it must affect a large number of adjudications affecting a large number of employers and workmen, we asked the State Government if it desired to
file an affidavit before us even at this stage. Thereupon the State Government filed an affidavit sworn by
the Secretary to Government, Labour Department.
Tbe affidavit says that the drafts of G. 0. No. 615
and the consequential order G. 0. No. 671 passed on
March 15, 1951, were put up before the then labour
Minister. The said notifications were issued only after
all the aspects of the matter were fully considered by ,
the State Government and it had satisfied itself that it
was necessary and expedient to issue the same for the
purpose of securing public convenience, and maintenance of public order and supplies and services essential to the community and for the maintenance of
employment. We accept this affidavit and it follows
therefore that the satisfaction required as a condition
precedent for the issue of an order under s. 3 of the
Act was in fact there before the order No. 615 was
passed on March 15, 1951, followed by the consequen- •
tial order No. 671 of the same date. In view of this
the only question that we have to consider is whether
I
"-.:.
-~/ ..
•
1 S.C.R. SUPREME COURT REPORTS
431
z96r
it is necessary that the satisfaction should be recited
in the order itself and whether in the absence of such
The Swadeshi
recital an order of this nature would be bad.
Cotton Mills
The first contention of Shri Pathak, who appears
co. Limited
for one of the appellants, is that where a condition
v.
precedent is laid down for a statutory power being The State of u. P.
exercised it must be fulfilled before a subordinate
"" Others
authority can exercise such delegated power.
As to
wanchoo J.
this contention there can be no dispute. Further,
according to Shri Pathak, there must be a recital in
the order . that the condition is fulfilled before the
subordinate authority acts in the exercise of such
delegated power. If there is no such recital in the
instrument by which the delegated power is exercised,
the defect cannot be cured by an affidavit filed in the
proceedings and the order would be bad ab initio. It
is urged that where subordinate rules of this nature
have to be made and they affect the general public or
a section thereof, conditions precedent to the exercise
of the power must be recited when the power is
exercised in order that the public may know that the
rules are legal and framed after satisfying the conditions necessary for the purpose. Moreover, some of
the ~ubordinate rules may have to be enforced by
courts and tribunals and it is necessary that courts
and tribunals should also know by the presence of the
recital in the order that the rules are legal and binding and have been framed after the condition precedent had been satisfied. In particular, it is urged that
where the rules are of a general nature and are sub-
•
ordinate legislation the satisfaction of the condition
precedent becomes a part of the legislative process so
far as the subordinate authority is concerned and the
defect in legislative process cannot be remedied later
by affidavit.
Shri C. B. Aggarwala on the other hand contends
that where a statute gives power to make an order
subject to certain conditions then unless the statute
requires the conditions to be set out in the order it is
not necessary that the conditions should appear on
~ the face of the order and in such a case it should be
presumed that the condition was satisfied unless the
432
SUPREME COURT REPORTS
[1962)
, 96,
contrary is established. He drew a distinction between those cases where the condition precedent is the
The Swadeshi
subjective opinion of the subordinate authority and
Cotton. Mildts
those where the statute requires a hearing and a find.
Co. Limite
,
v.
mg. In the former case he contends that the preThe State of u. P. sumption should be in favour of the opinion having
& Othm
been formed before the order was passed though in
the latter case it may be that the order should show
Wanchoo J.
that there was a hearing and a finding.
The power to pass an order under s. 3 arises as soon'
as the necessary opinion required thereunder is formed. This opinion is naturally formed before the order
is made. If therefore such an opinion was formed and
an order was passed thereafter, the subsequent order
would be a valid exercise of the power conferred by
the section. The fact that in the notification which
is made thereafter to publish the order, the formation
of the opinion is not recited will not take away the
power to make the order which had already arisen
and led to the making of the order. The validity of
the order therefore does not depend upon the recital
of the formation of the opinion in the order but upon
the actual formation of the opinion and the making of
the order in consequence. It would therefore follow
that if by inadvertence or otherwise the recital of the
formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by
showing by other evidence in proceedings where
challenge is made to the validity of the order, that in
fact the order was made after such opinion had been
formed and was thus a valid exercise of the power
conferred by the law. The only exception to th\s
course would be where the statute requires that there
should be a recital in the order itself before it can be
validly made.
There is no doubt that where a statute requires that
certain delegated power may be exercised on fulfilment of certain conditions precedent, it is most desirable that the exercise should be prefaced with a recital showing that the condition had been fulfilled. But
it has been held in a number of cases dealing with
executive orders that even if there is some lacuna of
.. , ..
'--
•
-
J
1 S.C.R. SUPREME COURT REPORTS
433
this kind, the order does not become ab initio invalid
'9 6'
and the defect can be made good by filing an affidavit
The Swad,,hi
later on to show that the condition precedent was
Cotton Mills
satisfied. In The State of Bombay v. Purushottam Jog
co. Limited
Naik (1), which was a case relating to preventive
v.
detention it was held by this Court that even if the The State 0! u. P.
order was defective in form it was open to the State
"" Others
Government to prove by other means that it was
wanchoo 1.
validly made. In Biswabhusan Naik v. The State of
Orissa ('), which was a case relating to sanction under
the Prevention of Corruption Act, No. II of 1947,
this Court held that "it is desirable to state the facts
on the face of sanction, because when the facts are not
set out in the sanction, proof has to be given aliunde
that sanction was given in respect of the facts constituting the offence charged; but an omission to set out
the facts in the sanction is not fatal so long as the
facts can be and are proved in some other way". In
a later case in The State of Bombay v. Bhanji Munji (')
which was a case of requisition under the Bombay
Land Requisition Act, this Court held that it was not
necessary to set out the purpose of the requisition in
the order; the desirability of such a course was obvious because when it was not done proof of the purpose must be given in other ways. But in itself an
omission to set out the purpose in the order was not
fatal so long as the facts were established to the satisfaction of the court in some other way.
We see no difficulty in following this principle in
the case of those orders also which are in the nature
of subordinate legislation. Whether orders are executive or in the nature of subordinate legislation their
validity depends on certain conditions precedent
being satisfied. If those conditions precedent are not
recited on the face of the order and the fulfilment of
the conditions precedent can be established to the
statisfaction of the court in the case of executive
orders we do not see why that cannot be made good
in the same way in the case of orders in the nature of
(1) [1952] S.C.R. 674.
(2) [1955] I S.C.R. 92.
(3) [1955] I S.C.R. 777.
55
434
SUPREME COURT REPORTS
[1962]
z96z
subordinate legislation. We cannot accept the extreme
argument of Shri Aggarwafa that the mere fact that
The Swadeshi
Cotton Mills
the order has been passed is sufficient to raise the
co. Limited
presumption that conditions precedent have been
v.
satisfied, even though there is no recital in the order
The State of u. P. to that effect. Such a presumption in our opinion can
& Othm
only be raised when there is a recital in the order to
--
that effect. In the absence of such recital if the order
Wanchoo ].
is challenged on the ground that in fact there was no
satisfaction, the authority passing the order will have
to satisfy the court by other means that the conditions
precedent were satisfied before the order was passed.
We are equally not impressed by Shri Pathak's argument that if the recital is not there, the public or
courts and tribunals will not know that the order was
validly passed and therefore it is necessary that the,·e
must be a recital on the face of the order in such a
case before it can be held to be legal. The presumption as to the regularity of public acts would apply in
such a case; but as soon as the order is challenged and
it is said that it was passed without the conditions
precedent being satisfied the burden would be on the
authority to satisfy by other means (in the absence of
recital in the order itself) that the conditions precedent had been complied with. The difference between
a case where a general order contains a recital on the
face of it and one where it does not contain such a
recital is that in the latter case the burden is thrown on
the authority making the order to satisfy the court by
other means that the conditions precedent were fulfilled, but in the former case the court will presume
the regularity of the order including the fulfilment of
the conditions precedent; and then it will be for the
party challenging the legality of the order to show
that the recital was not correct and that the conditions precedent were not in fact complied with by the
authority: [see the observations ofSpens C. J. in King
Emperor v. Sibnath Banerjee (1), which were approved
by the Privy Council in King Emperor v. Sibnath
Banerjee (')]. Nor are we impressed with the contention of Shri Pathak that conditions become a part of
{I) (1944) F.C.R. I, 42.
(2) (1945) F.C.R. 195. 216-7.
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I S.C.R. SUPREME COURT REPORTS
435
legislative process and therefore where they are not
r96r
complied with the subordinate legislation is illegal and
The swadeshi
the defect cannot be cured by an affidavit later.
It is
cotton Mills
true that such power may have to be exercised subject
co. Limited
to certain conditions precedent but that does not
v.
assimilate the action of the subordinate executive The State of u. P.
authority to something like a legislative procedure,
& Others
which must be followed before a bill becomes a law.
Our conclusion therefore is that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order, (be it executive or
of the character of subordinate legislation), it is not
necessary that the satisfaction of those conditions
must be recited in the order itself, unless the statute
requires it, though, as we have already remarked, it
is most desirable that it should be so, for in that case
the presumption that the conditions were satisfied
would immediately arise and burden would be thrown
on the person challenging the fact of satisfaction to
show that wh.at is recited is not correct. But even
where the recital is not there on the face of the order,
the order will not become illegal ab initio and only a
further burden is thrown on the authority passing the
order to satisfy the court by other means that the
conditions precedent were complied with. In the
present case this has been done by the filing of an
:;i.ffidavit before us.
We are therefore of opinion that
the defect in the two orders of March 15, 1951, has
beep. cured and it is clear that they were passed after
the State Government was satisfied as required under
s. 3 of the Act. Therefore Government Orders Nos.
615 and 671 of March 15, 1951, with which we are
concerned in the present appeals are valid under s. 3
of the Act.
It remains to consider certain cases cited by Shri
Pathak in support of his contention. The first case
to which reference may be made is Wichita Railroad
& Light Company v. Public Utilities Commission of the
State of Kansas (1). That was a case of a Commission
which had to give a hearing and a finding that they
were unreasonable before contract rates with a public
(1) (1922) 67 L. Ed. 124.
Wanchoo ].
436
SUPREME COURT REPORTS
[1962]
1961
utility company could be changed. After referring to
The swadeshi
s. 13 of the Act under consideration, the U. S. Supreme
cotton Mills
Court held that "a valid order of the Commission
co. Limited
under the act must contaiq a finding of fact after
v.
hearing and investigation, upon which the order is
The State of u. P. founded, and that, for lack of such a finding, the order
6 Others
in this case was void". It rejected the argument that
Wanchoo J,
the lack of express finding might be supplied by
implication and by reference to the averments of the
petition invoking the action of the Commission and
rested its decision on the principle that an express
finding of unreasonableness by the Commission was
indispensable under the statutes of the Sta,te.
This
case in our opinion is based on the provision of the
statute concerned which required such a finding to be
stated in the order and is no authority for the proposition that an express recital is necessary in the order in
every case before a delegate can exercise the power
delegated to it.
The next case ·is Herbert Mahler v. Howard Eby (1).
That was a case dealing with deportation of aliens.
The statute provided for deportation if the Secretary
(Labour) after hearing finds that such aliens were
undesirable residents of United States. But the Secretary made no express finding so far as the warrant for
deportation disclosed it. Nor was the defect in the
warrant of deportation supplied before the court. The
court held that the finding was made a condition
precedent to deportation and it was essential that
where an executive is exercising delegated legislative
power he should substantially comply with all the
statutory requirements in its exercise, and that, if his
making a finding is a condition precedent to this act, the
fulfilment of that condition should appear in the record
of the act, and reliance was placed on the case of
Wichita Railroad & Light Company v. Public Utilities
Commission (2).
This again was a case of a hearing
and a finding required by the statute to be stated in the
order and must therefore be distinguished from a case
of the nature before us. It may however be added
that the court did not discharge the deportees and
(I) (1924) 68 L. Ed. 549·
(2) (1922) 67 L. Ed. 124.
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I S.C.R.
SUPREME COURT REPORTS
437
gave a reasonable time to the Secretary (Labour) to
r96r
correct and perfect his finding on the evidence producThe Swadesh;
ed at the original hearing or to initiate another proCotton Mills
ceeding against them.
Co. Limited
The last case is Panama Refining Company v. A. D.
v.
Ryan (1). In that cases. 9 (e) of the National Indus- The State 0! U. P.
trial Recovery Act of 1933 was itself struck down on
& Others
the ground of excessive delegation, though it was
wa:,;;;-o J.
further held that the executive order contained no
finding and no statement of the grounds of the President's action in enacting the prohibition. This case
in our opinion is not in point so far as the matter
before us is concerned, for there the section itself was
struck down and in consequence the executive order
passed thereunder was bound to fall.
We are therefore of opinion that s. 3 of the Act is
constitutional so far as els. (c), (d) and (g) are concerned and orders Nos. 615 and 671 passed on March 15,
1951 are legal and valid. In the circumstances it is
not necessary to consider whether the High Court was
right in holding that the orders of references in these
cases were special orders under s. 3 and the references
under those orders were therefore valid. In this view
of the matter, the appeals fail and are hereby dismissed. In the circumstances we pass no order as to
costs.
Appeals dismissed.
(l) (1935) 79 L. Ed. 446.