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TMI Blog1973 (10) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... ciety of cultivators of village Lilakheri, tahsil and district, Sihore, and is registered under the provisions of the M.P. Co-operative Societies Act, 1961 (hereinafter called the Act). It has a committee to manage the affairs of the society. Some land was given to it by the State Government under the provisions of Section 162 of the M.P. Land Revenue Code. The Registrar, Co-operative Societies, in exercise of his powers under Section 53 (1) of the Act, and after issuing a show cause notice under Sub-section (2), ordered removal of the committee and appointed Shri N. K. Shrimal to manage the affairs of the society for a period of one year. (ii) Before us, challenge to that order of supersession was expressly given up by the learned counsel for the petitioners. (iii) By order dated November 20, 1968, the Assistant Registrar extended the period of supersession by another year with effect from November 9, 1968. It is not contended before us that the Assistant Registrar had no power. (iv) By order dated February 11. 1970 the Assistant Registrar further extended the period of supersession upto October 31, 1970, and appointed Kendriya Sahakari Adhikosh Maryadit, Bhopal, to manag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time to tune. Provided that no such order shall remain in force for more than three years, in the aggregate. X X XX X X X 91. Power to exempt societies from conditions as to registration and provisions of Act. -- Notwithstanding anything contained in this Act, the State Government may, by a general or special order in each case and subject to such conditions, if any, as it may impose, exempt any society or class of societies from any of the provisions of this Act, or may direct that such provisions shall apply to such society or class of societies with such modifications as may foe specified in the order. 5. It is clear that Section 91 clothes the State Government with powers (a) to exempt any society or class of societies from any of the provisions of the Act; and (b) to apply to such society or class of societies such provisions with, such modifications as it may specify. 6. Shri Gulab Gupta, learned counsel for the petitioners, challenges the vires of Section 91, contending that it is a piece of excessive delegation by the legislature to the executive. In fact, the legislature abdicated its functions in favour of the executive, which is not permissible. The po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persona on whom, tax is to be laid the rate at which it is to be charged in respect of different classes of goods and the like. 10. It was succinctly observed by Gajendragadkar, J. (as he then was) in Vasanlal Maganbhai v. State of Bombay AIR 1961 SC 4:-- It is now well established by the decisions of this Court that the power of delegation is a constituent element of the legislative power as a whole, and that in modern times when the Legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by their Acts. 11. It is the exclusive province of the legislature to formulate legislative policy and to declare the essentials of working out that policy by setting forth sufficient guidance. The Court should be reluctant to invalidate a statute on plea of abdication of legislative power or excessive delegation. It must be conceded, that the legislature has utmost discre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was held that Section 9 did not involve any delegation of legislative power and was only an instance of conditional legislation. 14. In Jatindra Nath v. Province of Bihar, (1949) 2 FCR 595 = (AIR 1949 FC 174) the question arose as to the validity of the proviso to Section 1 (3) of the Bihar Maintenance of Public Order Act (V of 1947), which provided that the Act should remain in force for a period of one year from the date of commencement provided that the Provincial Government may, by notification direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification. The Federal Court, by a majority, held that the power to extend the operation of the Act was a legislative power and was not a conditional legislation. The proviso and the notification, were held to be ultra vires. 15. In re Article 143 of the Constitution of India (Delhi Laws Act case). AIR 1951 SC 332 the question as to the delegatibility of legislative power was comprehensively examined by the Supreme Court on a reference made by the President of India under Article 143 of the Constitution. It was held by a majority of Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar case at all, depends on a consideration of the provisions of the particular Act with which the Court has to deal including its preamble. Further it appears to us that the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation. In the light of the above passage, it must be remembered that co-operative movement has a well-established policy and principle. It is a national movement. It is recognized and practised in almost all the States and there are corresponding enactments there. Section 91 confers power on the State Government, which is fully conversant with the principles of co-operative movement. 18. Co-operative movement originated with Rochdale Stores of England and assumed a variety of forms and was applied to various walks of economic and social life. Co-operative principles have been formulated on the basis of experience acquired by pioneers of co-operation in different countries. It will be useful to recapitulate them here. (1) Voluntary Association. -- A cooperative society is essentially a voluntary association. No one can be compelled to j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed to remain above party politics. It is a national movement and has for its object the economic and social uplift of mankind. (8) Equality.-- Equality is the hall mark of democracy, within the society, equality should govern the relationship between the members. Whatever social or financial status may be of a member and irrespective of the extent of the share capital contributed by him, he has equal rights in the society. 19. In corresponding enactments of almost all other States, the same provisions are found as contained in Section 91 of the M.P. Act. See Section 92 of the Assam Act; Section 62 of the Bihar Act; Section 67 of Delhi Act; Section 161 of Gujarat Act; Section 111 of Madras Act; Section 157 of Maharashtra Act; Section 121 of Mysore Act; Section 123 of Orissa Act; Section 77 of Punjab Act; Section 81 of Rajasthan Act; Section 89 of Travancore-Cochin Act; and Section 56 of U. P. Act. In all these corresponding provisions, the power to exempt and the power to apply with modifications are conferred on the State Government. All those sections are almost verbatim copy of one another. They seem to have been borrowed from Section 46 of the Central Act, which reads thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as to affect its identity or structure or the essential purpose to be served by it. The power to modify certainly involves a discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes. Mukerjee, J. observed in AIR 1951 SC 332-- The word 'modification' does not, in my opinion, mean or involve any change of policy, but is confined to alteration of such a character which keeps the policy of the Act intact and introduces such changes as are appropriate to local conditions of which the executive Government is made a judge. These modifications are permissible for local adjustments or changes of a minor character. The power to restrict and modify does not import the power to make essential changes; it should be confined to alteration of a minor character. The crux of the matter is that the modifications in the provisions of the Act must be within the frame-work of the Act; they cannot be such as to affect its identity, structure or essential purpose to be served by it. In the true sense, the power to make modifications implies a power exercisable in aid of the legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the Court is in a position to say that the legislature had clearly indicated the underlying principle of the legislation and laid down criteria and proper standards but had left the application of those principles and standards to individual cases in the hands of the executive, it cannot be said that there was excessive delegation of powers by the legislature. On the other hand, if a review of all those facts and circumstances and the provisions of the statute, including the preamble, leaves the Court guessing as to the principles and standards, then the delegate has been entrusted not with the mere function of applying the law to individual cases, but with a substantial portion of legislative power itself. 29. The scheme of the Act may be recapitulated. Section 10 deals with classification of societies. Chapter II of the Act deals with registration. Chapter III contains provisions for eligibility for membership and also rights, liabilities and privileges of members. Section 19 enumerates the persons who may become members. Section 24 provides for restriction on holding of share capital by a member (with delegated power to State Government). Chapter IV deals with duties, pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-Cochin, three years in Andhra Pradesh, and four years in Gujarat, Madras, Maharashtra, Mysore, Orissa and Rajasthan. Thus in most of the States, the period of supersession can be extended, from time to time, upto four years in the aggregate. 32. Judged in this light, the impugned Government orders are valid inasmuch as they are within the frame-work of the Act, Clearly. Section 53 (1) lavs down the conditions for supersession. In the present case, the Government merely relaxed the maximum duration of supersession fixed in the proviso to Section 53 (3). 33. Now, the question is what the State Government actually did by the first impugned order, dated May 24, 1971. All that it has done is to relax the maximum time limit of supersession under the proviso to Section 53 (3) of the Act. But having done so, all that it says is that it accords sanction or approval. The Hindi word used in Swikriti Pradan Ki Jati Hai . The word Swikriti is authorised Hindi equivalent of the word admit . It is obvious enough that the word admit does not fit in if the order of the State Government were to be translated into English, The word Swikriti is then a second equivalent of accept , a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with effect from December 10, 1972. It js only a sovereign legislature which can enact a law with retrospective operation. The Parliament can delegate its legislative power within the recognised limits. Where powers are delegated by the legislature to a person or authority, it will depend upon the language employed in the statutory provision, which delegates such power, whether it has empowered, in ex-press terms or by necessary implication, such person or authority to exercise that power with retrospective effect But where no such language is to be found, the person or authority, exercising delegated legislative functions, cannot make order, which can operate with retrospective effect. When power is delegated to an authority by the legislature such authority has no power to exercise it with retrospective effect. In Indramani v. W.R. Natu (1963) 1 SCR 721 = (AIR 1963 SC 274) Subba Rao. J., in his dissenting judgment, observed:-- Unless a statute confers on the Government an express power to make an order with retrospective effect, it cannot exercise such a power. 38. In I.T. Officer, Alleppey v. M. C. Ponnoose, AIR 1970 SC 385 it was laid down:-- The Parliament can del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of two years. It was extended from, time to time. The maximum period of three years expired on September 10, 1968. It is said in the judgment; The period has, however, been further extended for a period of two years by the Registrar with the sanction of the State Government accorded under Section 91 of the Act . The contention before the Division Bench was that the period could not be extended beyond three years. It was held that the Government in exercise of its powers under Section 91 of the Act relaxed the proviso to Sub-section (3) of Section 53 of the Act to the extent specified in the order, and that this was clearly within the powers of the State Government. In that case, the State Government did not, by its order, proorio vigore extend the period of supersession. It merely accorded sanction by relaxing the limit prescribed in the proviso to Sub-section (3) of Section 53. It is clear from the statement of facts in that decision that it was the Registrar who extended the period of supersession beyond three years and that he did so by virtue of the aforesaid sanction. Further, there is nothing in the judgment to indicate that the sanction accorded by the State Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the legislature to another body of its choice. (5) While so delegating, the legislature should enunciate, either expressly or by implication, the policy, principles or standards for the guidance of the delegate in exercising such delegated power (6) Uncontrolled entrustment of power without guidance amounts to excessive delegation of legislative authority. (7) The legislature cannot delegate to the executive the power to make exemptions from the operation of an Act, without laying down the policy for guidance of the latter. (8) As a delegated power, 'modification' does not mean or involve any change of policy but is confined to alteration of such a character which keeps the policy of the Act intact and introduces such changes as are appropriate to local conditions of which the executive Government is made the judge. (9) Where unguided discretion is conferred by the statute on the executive the legislation need not be struck down, the Court should examine the principles and policy of the statute. Whether guidance has been given may depend upon the consideration of the provisions of the particular Act with which the Court has to deal i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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