Dixit, J. - (1.)THE Applicant Krishnaji Mehrun kar was convicted by the District Magistrate, Indore City, under Section 5, Public Safety Order (Indore) of 1947 and sentenced to pay a fine of Rs. 500. In the appeal the learned Additional Sessions Judge maintained the conviction but reduced, the sentence to a fine of Rs. 300. The Petitioner, therefore, applied to this Court for revising the order of the Sessions Judge. When the application came on for hearing before my learned brother Rege J., the validity of the Public Safety Order was impugned by the Applicant on the ground that it was ultra vires of the Holker State Cabinet. The learned Judge considered that the objection raised appeared to be of great constitutional importance and the application should be heard by a Bench rather than by him Sitting singly. He, therefore, re -corded his opinion and directed that the papers may be placed before the Chief Justice for orders. Accordingly, this Special Bench was constituted by my Lord the Chief Justice to hear this reference.
(2.)THE sole question for determination in this reference is whether the Indore Public Safety Order of 1947 was valid, and intra vires the Holker State Cabinet. The Cabinet of the Government of His Highness the Maharaja Holker purported to make and promulgate the Public Safety Order under a power conferred on it by Huzoor Shree Shankar Order No. 42 dated 29th November 1943. That order provided as follows:
In modification of Huzoor Shree Sbankai Order No. 25 dated 22nd May 1930, His Highness the Maharaja has been pleased to order that during his absence from the State, the Cabinet may exercise powers of disposal in any urgent case under any of the reserved subjects when His Highness' Orders cannot be obtained, in accordance with the procedure laid down in Huzoor Shree Shankar Orders No. 22 dated 21st November 1943 and No. 23 dated 23rd November 1943, in time.

The Huzoor Shree Shankar Orders Nos. 22 and 23 of 1943 laid down that:

The Cabinet will exercise the powers of His Highness' Government in all matters except the following reserved subjects which should be submitted to His Highness with the opinion of the Cabinet.

The reserved subjects enumerated therein included "Passing of new Acts and important amendments." The Public Safety Order was made and promulgated by the Holker State Cabinet by Resolution No. 1412 dated 19th September 1947. The order provided that it shall come into force in such areas and on such date or dates, as the Government may by notification in the Gazette appoint. The Order came into feces in Indore City on 4th February 1948.

Mr. Bhalerao, learned Counsel for the Applicant urged that the power of legislation conferred on the Cabinet by Huzoor Shree Shan kar Order No. 42 dated 29th November 1943 was subject to three restrictions. This power could be exercised by the Cabinet only if, firstly His Highness the Maharaja Holkar was absent from the State; secondly if there was an emergency calling for urgent legislation and lastly if the orders of His Highness could not be obtained in time. On the basis of a notification dated 17th September 1947 with regard to the appointment of Mr. N.C. Mehta as Prime Minister issued under the signature of His Highness and published in the Holker Government Gazette of 24th September 1947 and other notifications issued under His Highness' signature in the month of September 1917, and stressing the long interval between the making and promulgation of the Public Safety Order and the date on which the order came into operation in Indore City, it was argued by the learned Counsel for the Petitioner that there was no "urgency" or "emergency" such as had been contemplated by the Shree Shaukar Order No. 42 of 29th November 1943 and that His Highness the Maharaja Holkar being in India, if not in Indore, his orders could have been obtained in time for the promulgation of the Order.

(3.)THE learned Advocate General contended that in the absence of any definite allegation that His Highness the Maharaja Holkar was in the State on 19th September 1947 and in the absence of any evidence on the point he WAS not called upon to meet any objection on that score, He argued that the act of the Holkar Cabinet in coming to the conclusion that a state of emergency calling for the immediate promulgation of the Public Safety Order existed and that for that purpose the orders of His Highness the Maharaja Holkar could not be obtained in time is an act beyond the cognizance of the Court; and that the 'Cabinet was the sole judge of whether such circumstances existed as to render it necessary for it to exercise the legislative powers and promulgate the Public Safety Order.
;