[1955] 1 954 May & Anr. v. The Chairman, Patna Administration Committee, P.atna Bose]. to municipal & Anr.

Rajnarain Singh . ·v. The Chairman, Patna Administration Committee, Palna, and AnotMr. Bose]. 296 SUPREME COURT REPORTS [1955] 1922, modified it and extended it in its modified form to the Pat11a Administration and Patna Village .areas. This was by Notification No. M/ Al-201-51-406 L.S.G. ran as dated 23rd April, 1951. The modified version follows: taxes-When "104. Assessment of ministration Act, 1915, (B & 0 Act I of 1915), extended to any place, or water may be levied quarter next to has been completed in the area to which extended." the Patna Ad is first tax on holdings, latrines the beginning of the in which the assessment of the tax the Act is the first The High Court, purporting to apply In re The Delhi Laws Act, 1912( 1 ) held that the impugned sections and the notifications complained of are intra vires. We are only concerned with the Patna Village area in this case. The appellant and those he represents all live in that area and are the ones who impugn the valid ity of levied on them. They were brought under Municipal control on 18th April, 1951. The Bengal Municipal Act of 1884 was no longer one of the existing laws in the State of Bihar It was repealed in full in 1922 and was replaced by the Bihar and Orissa Municipal Act of 1922. The selected sections of the Bengal Act of 1884 which the Local Government had picked out and applied to Patna Ad ministration were also repealed on 25th April, 1931, and in their place was substituted another set of sec tions picked out by the Local Government Bihar and Orissa Act of 1922 and modified in places. The facts accordingly narrow down to this. that date. 011 In 1928 an executive authority (the Local Govern ment of Bihar and Orissa), subject legislative control of the Bihar and Orissa Legislature, was em powered by that Legislature (because of Act I of 1915 amended by Act IV of 1928) to do tl1e following things :- ( 1) to cancel or modify any existing Municipal laws in the Patna Administration area ; (2) to extend the Bihar and Orissa . Municipal Act to this area all or any of the sections · 1922 (1) [1951) S.C.R. 747. _ ... S.C.R. SUPREME COURT REPORTS 297 subject considered fit ; to such restrictions and modifications as 1954 Rajnarain Singh '<· The Chairman, Patna Administration Commit[fe, Patna,, and Another. Bose]. (3) to add to the Patna Administration area other areas not already under municipal control. This, in short, is the effect of sections 3(1) (f), 5 and 6(b) of the Patna Administration Act of 1915 as amend the Local Government (and later · the Governor) exercised all three powers. in 1928. Armed with this authority, •, - On 25th April, 1931, the Local Government repealed the existing law in the Patna Administration area, namely the sections of the Bengal Act of 1884 which In its place, had been applied there from time to time. it introduced a new set of law culled from the Bihar and Orissa Act of 1922 with such restrictions and modi fit. Then on 18th April, 1951, fications as it thought the Governor added Patna Village to the Patna Adminis tration area. And finally, on 23rd April, 1951, he added a modified version of section 104 of the Bihar and Orissa Municipal Act of 1922 to the Municipal laws these two combined areas. The first question is whether the notification of 25th In our April, 1931, can be attacked by the petitioner. opinion, it cannot. As we have already pointed out, this notification gave a sort of fresh Municipal Code to the Patna Administration area. But it did not affect the area with which we are concerned namely, the limited to Patna Adminis Patna Village area. tration. The petitioner therefore cannot challenge because it does not affect him and the question whether it is open to challenge by other persons does not arise. We are accordingly unable to give him the declaration which he seeks regarding that notification. It was It was made under section 3(1) (f), We turn next to the notification of 23rd April, 1951. This does affect him because it subjects him tion. will be necessary to examine (1) whether the notification travels beyond the Act and (2) if not, whether section 3(1) · (f) is itself ultra vires. But we cannot do this until we examine decision of this Court iri the Delhi Laws Act case(1). impugned portion of therefore, (1) [1951) S.C.R. 747. 1954 ~ Rajnlzrain' Sin'gh v. Tht·Ghain1ran, Palha Adniinistraiion Committet; Palha, and -An'Olher. Bose'] 298 SUPREME COURT REPORTS [1955] Because of the elaborate care with which every to become diffuse, but if one con forgets the reasons given, a plain pattern leaving only a narrow margin of doubt for aspect of the problem was examined decision has tended centrates on the matters actually decided and for a moment emerges future dispute. in that case, The Court had before it the following problems. In the Central Legislature had empowered an legislative control to an area which was also the legislative sway of the Centre. The varia laws which the executive the modifi to make. in them. The each case, executive authority under apply, at "its discretion, laws tions occur authority was authorised to select and in cations which it was empowered variations were as follows : type of in the (1) Where the executive authority was permitted, at its discretion, to apply without modification (save incidental changes such as name and place), the whole of any Central Act already in existence in any part of India under the legislative sway of the Centre to new area: This was upheld by a majority of six to one. (2) Where the executive authority was allowed select and apply a Provincial Act in similar circums tances : This was also upheld, but this time by a majority of five to two. (3) Where the executive authority was permitted select future Central laws and apply them in a similar way: to select futm: This was upheld by five to two. ( 4) Where the authorisation was Provincial laws and apply them as above : This was also upheld by five to two. the authorisation was (5) Where already nothing Central or Provincial, with er without modificat\on : the area and either substitute laws, places or substitute other in force to repeal This was held !e:> ~ 14itfa 11ires by a majority of four to three. [ ( y '-· ·. S.C.R. SUPREME COURT REPORTS 299 (6) Where the authorisation was to apply existing laws, either Central or Provincial, with alterations and modifications ; and (7) Where the authorisation was to apply future laws under the same conditions : The views of the various memebers of the Bench were five cases, so it will not as clear cut here as in the first be necessary to analyse what each Judge said. 1954 Rtefnarain Sinth v. Thi Chairman, ' PaJna A.dministratio11 Commitl(e, Patna, •nd Another. • Bose J. } ' in any "essential The opinion of Kania C. J. will be found at pages 794- 797. · Put briefly his view was that only Parliament legislative can effect modifications function" viz., legislative "the determination of formulation as a rule of conduct." . For policy and its to uphold what he called this reason he was prepared "conditional" or "subsidiary" or legisla "ancillary" tion, but not the application by an executive authority of Provincial Acts to which the Central Legislature had not applied same reason he excluded the application of all future legislation. its mind at all (page 801) ; and for . The present Chief Justice (Mahajan J. as he then was) took an even authorise delegation of ancillary or ministerial powers (pages 938 and 946) but except for that he said- stricter view. He was prepared "Parliament has no power to delegate legislative functions its essen to others, whether State Legis or executive authorities, except, of course, true nature are. minis latures functions which really in their terial." As against this, three of the Judges were more liberal. Das J. was of the opinion that so long as Parliament did not abdicate or efface itself and retained control in recall or destroy the sense of retaining the delegate or set or modify did, it could confer on the delegate all the rights of (page 1068). legislation which Patanjali Sastri J. (as he then was) took the same ex treme view (pages 857, 858 and 870). Fazl Ali J. did not go as far though he upheld all the Acts which were impugned in that case. At page 830 he said that- anything possessed itself 20-86 s.a. India/59 19~4 Rajnarain Singh . v. The Chairman, ·Patna .Administration Com'mill1_e, Patna, ·and Arweheh. Bose]. 300 SUPREME COURT REPORTS [1955] "the Legislature must normally discharge its pri itself and not through others, mary legislative function but that it may things which "utilise any outside agency to any extent it finds to do is unable necessary for doing In other words, itself or finds it can do everything which is ancillary to and necessary. for the full and effective exercise of its power of legis lation." it inconvenient to do. He dealt with the power to modify at page 846 and said- "The power of introducing necessary is incidental to the power law ........ The modifications are restrictions to apply and modifications to be or adapt the made within the framework of the Act and they cannot be such as essential purpose modify certainly tq make suitable to give an authority d1anges, but it would be useless the power the power to make suitable changes." its identity or structure or served by it. The power to adapt a law without giving involves a discretion to affect to be The other two Judges took an intermediate view. functions legislative that essential Mukherjea J. cannot be delegated and at pages 982 to 984 he cated what he meant : "The essential determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct," legislative function consists and at page 1000- legislative policy, "With the merits of Court of law has no concern. It is enough if it is defin ed with sufficient precisii;m and definiteness furnish sufficient guidance to the Executive Officer who it out. If there is no vagueness or has got indefiniteness in the formulation of the policy, I do not law has got any say in the matter." that a Court of to work so as Dealing with the word "modification" he said at page 1009-- .. ·s.C.R. SUPREME COURT REPORTS 301 in my "The word 'modification' ........... does not, opinion, mean or involve any change of policy but confined to alteration of such a character which keeps the policy of the Act intact and introduces such chang to local conditions of which the es as are appropriate executive Government is made the Judge ........ " At pages 1008 and 1009 he explained this further and "local . adjustments or limited changes of a minor character." the modifications BosE J. contended himself at page 1121- by saying the delegation cannot extend to the "altering in essential particulars of laws which are already in force in the area in question." But he added at page 1124- 1954 Rajnarain Singh V• The Chairman, Patna Administration Committee, Patna, and Another • Bose]. to make essential changes. "My answers are, however, subject to this qualifi to 'restrict and modify' does not cation. The power import the power It is con fined to alterations of a minor character such as are necessary to make an Act intended for one area appli cable to another and to bring it into harmony with in the State, or to delete portions already which are meant solely for another area. To alter essential character of an Act or to change it in material particulars is to legislate, and that; namely the power legislate, all authorities are agreed, cannot be dele gated by a Legislature which is not unfett~red." in being In our opinion, the majority view was executive authority can be authorised existing or future Exactly what constitutes an essential be enunciated in general divergence of view about this this much is clear from the opinions set out above : cannot include a .change of policy. that an to modify either laws but not in any essential feature. feature cannot terms, and there was some in the former case, but Its Now coming back to the notificatibn of 23rd April, vire.s was challenged on many grounds but 1951. it is· enough for the purposes of this case to .Rold the action of the Governor the residents of the Patna Village area to municipal taxation without observing the formalities imposed by sections 4, 5 and · 6 of the Bihar and Orissa Municipal Act of 1922, cuts in subjecting f954" .., Rajnarain Sinzh Tiu Chairman, PtUna Administration Committee 1 Patna, · .and Another. Bost J. 302 SUPREME COURT REPORTS [1955] across ·one of it essential features touching a matter of policy and so is bad: The Act of 1922 applied to the whole of Bihar and Orissa and one of its essential features. is that no muni to tax shall be thrust upon. a loca cipality competent lity without giving its inhabitants a chance of being heard and of being . given an opportunity to object. Sections 4, 5 and 6 afford a statutory guarantee to that the Local Government is under a effect. Therefore, statutory duty imposed by the Act in mandatory terms to listen to . the objections and take them into considera tion before reaching a decision. In our opinion, this is a matter of policy, a policy imposed by the Legislature and embodied in sections 4, 5 and 6 of the Act. We are not able to brush this aside as negligible and it cannot, in our opinion, be left to an executive authority to tear the Legislature's solemnly expressed mandate. To do so would be to change the policy of the majority in the Delhi Laws Act case(') say, cannot be done by a delegated authority. But the notification cannot be ultra vires if it does not travel beyond the powers con is good. It will therefore be ferred by a in the necessary to examine light of the Delhi Laws Act decision. the vires of section 3(1) (£) in disregard of this guarantee law and that, law which Now what exactly does section 3 ( 1) ( f) authorise? After its amendment it does two things : first, it empowers the delegated authority to pick any section it chooses out the Bihar and Orissa Municipal Act of 1922 and extend it to "Patna" ; and to apply Local Government and later it with such "restrictions and modifications" as things fit. the Governor) it empowers second, In the Delhi Laws Act case('), the following provision was held to be good by a majority of four to three : "The Provincial Government may ...... extend with such restrictions and modifications as it . thinks fit ..... . any enaWnent which is in force in any part of British India at the date of such notification." . Mukherjea and Bose JJ., . who swung tl1e balance, held that not only could an entire enactment with (1). [1951] S.C.R. 747 . " , - II S.C.R. SUPREME COURT REPORTS 303 modification be extended but also a part of one ; and indeed that was the actual decision in Burah's case(1) on the majority founded: (see Mukherjea J. at page 1000 and Bose J. at pages 1106 and 1121). But Mukherjea and Bose JJ., 'both placed a very restricted meaning on the words "restriction" and "m,adification" their opinions must be and, as they swung the balance, accepted as the greatest common measure of opinions embody agreement among the seven Judges. the decision of the Court because 1954 Rajnarain Sini:h v. The Chairman, Patna Administration Committee, Patna, and Another. BoJe]. '· it follows in its policy, the modification of Now the only difference between that case and this is that whereas in the former case the whole of an enact it could be extended, here, any ment, or a part of section can be picked out. But to pick out a section is to apply a part of an Act, and to pick out a part is to effect a modification, and as the previous decision holds that a part of an Act can be extended, a section. or sections can be picked out and applied, as in Burah's case ( 1 ) where just that was done ; also, for the same reason that the whole or a part of an Act can be modified ; it follows that a section can also be modified. But even as the whole cannot be permitted to effect any essential change in the Act or so also a modification of a an alteration If that part cannot be permitted to do that either. the law, as laid down in the previous deci were not so, by picking out parts of an Act sion, could be evaded in such a way as to only, with or without modification, the Act as a whole. It effect an essential change is selected follows that when a section of an Act application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Aat regarded as a whole. Sub that section 3(1) (f) is ject to that intra vires, that is to say, we hold that any section or sections of the Bihar and Orissa Municipal Act of 1922 can be picked out and applied to "Patna" provided that does not effect any essential change in the Act or alter its policy. limitation we hold The notification of 23rd April, 1951 does, in our opinion, eflect a radical change in the policy of the Act. (1) 5 I.A. 178. Rajnarain Singh v. The Chairman, Patna Administration Committee, Pntna, and Another. Bose]. ' 304 SUPREME COURT REPORTS [1955) it travels beyond the authority which, Therefore, our judgment, section 3(1)(f) confers and consequently it is ultra vires. It is not necessary to examine the vires of section 5 of the Act of 1915 which was also impugned because no action taken under it has hurt the appellant and so he cannot question its vires. The result is that the appeal succeeds. We hold- (1) that section 3(1) (f) is intra vires provided always the words "restriction" and "modification" are used in the restricted sense set out above ; and (2) that the notification of 23rd April, 1951, is ultra vtres. The question about the vires of the notification of 25th April, 1931, and of section 5 does not arise. ,, The respondents will pay the appellant's costs here and in the High Court. ' Appeal allowed.