United Stats of Saurashtra vs Mahipatram Dayaram Dubal

This is the reference made by the learned Sessions Judge, Jhalawad Division, recommending that the sentence passed on the opponent Mahipatram Dayaram Dubal should be set aside on the ground that the prosecution was invalid inasmuch as the Notification of the Limdi State dated 1st March 1915, on which the prosecution was based was ultra vires. That Notification, which is issued as Hazur Order No. 84 and signed by the then Mukhya Karbhari and published in the Limbdi Darbari Gazette, says among other things that if the owner or the manager of a Press prints and publishes any writing without mentioning the name of the Press, its keeper and the publisher, he will be liable to be prosecuted and fined up to Rs. 200.

The opponent was convicted and fined Rs. 15 for the infringement of this order. He applied to the Sessions Court in revision. The learned Sessions Judge was of the opinion, relying on a decision reported in 1 Sau. L.R. 1 that the order issued by the Mukhya Karbhari was ultra vires and on that ground he recommends that the High Court should set aside the conviction and sentence of the opponent. In the case reported in 1 Sau. L.R. 1, the order which was held by this High Court to be ultra vires was an order of sanction to prosecute a parson. That order was signed by the Dewan and there was nothing to show that it was issued under the direction of the Ruler. On the other hand, in the present case this order has been published in the Limbdi Darbari Gazette as a Hazur Order, which means presumably that it was issued by the Hazur, that is, His Highness the Thakore Saheb of Limbdi, and the Mukhya Karbbari was simply the publishing authority. There is a material difference between the order in 1 Sau. L.R. 1 and the present order inasmuch as the order in the former case has not been published in the State Gazette, whereas here the order is published in the State Gazette as it is also described as a Hazur Order. A similar point had come up for consideration by this Court in civil Misc. Appeal No. 44 of 1948 and certain other cognate matters, in which the judgment was given by Shukla J., and he held relying upon the provisions of the Indian Evidence Act and the general presumption that the order must be presumed to be an order issued under the authority of His Highness the Jam Saheb. Unfortunately, the judgment is not reported and, therefore, does not seem to have come to the notice of the learned Judge. There it was an order under the Jamnagar Rent Act and it was published in the State Gazette. We think the facts of the present case are similar to the facts in the decision of Shukla J. and are different from the facts of the case reported in 1 sau. 1. Rule 1. We are, therefore, of the opinion that the order, on which the prosecution of the present case is based, is correct, inasmuch as there is a general presumption that the Notification issued is under the orders of the Hazur, and there must be evidence to rebut that presumption. As there is no evidence to rebut that presumption in the present case, we hold that the Notification is good.

We do not accept this reference and direct that the papers should be sent back.