9911796707
TMI Blog1960 (8) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... chedule appended thereto . Amongst the areas thus specified was the area in which the appellants' lands are situated. Subsequently, on October 17, 1952, by virtue of the same powers and in supersession of all other earlier notifications issued in that behalf the Government purported to prescribe a rate as the lower rate of maximum rent at which the rent shall be payable by the tenants in respect of the lands situate in the areas specified in Schedule I appended to it. It is unnecessary to set out the rates thus prescribed; it would be enough to state that the rate of maximum rent prescribed by this notification is very much lower than the rate which had been fixed by the earlier one. By their petitions filed in the Bombay High Court the appellants contended that s. 6(2) was ultra vires, and that even if s. 6(2) was valid the impugned notification was invalid. Accordingly they prayed for a writ of mandamus or a writ in the nature of mandamus or any other appropriate direction or order against the Government, the Mamlatdar of the area concerned and their respective tenants prohibiting them or any one of them from giving effect to the said notification. They also claimed a directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Legislature has not prescribed any minimum as it should have done. The High Court has held that the delegation involved in s. 6(2) is within permissible limits and as such the challenge to the vires of the said provision cannot succeed. 4. It is now well-established by the decision 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. The extent to which such delegation is permissible is also now well-settled. The Legislature cannot delegate its essential legislative function in any case. It must lay down the legislative policy and principle, and must afford guidance for carrying out the said policy before it delegates it subsidiary powers in that behalf. As has been observed by Mahajan, C.J., in Harishankar Bagla v. The State of Madhya Pradesh (1955) 1 S.C.R. 381 the Legislature cannot delegate its function of laying down legislative policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no standards laid down in that behalf, and so the delegation was unfettered and uncanalised. This argument was rejected by this Court on the broad consideration that the legislative policy was apparent on the face of the Act itself. What the Act aims at , observed Mukherjea, J., as he then was, is the statutory fixation of minimum wages with a view to obviate the chance of exploitation of labour. The Legislature undoubtedly intended to apply this Act not to all industries but to those industries only where by reason of unorganised labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low . The learned Judge then pointed out that conditions of labour vary under different circumstances and from State to State, and the expediency of including a particular trade or industry within the schedule depends upon a variety of facts which are not uniform and which can best be ascertained by the person who is placed in charge of administration of a particular State. It is with a view to carry out the particular purpose of the Act that power is delegated to the appropriate Government by s. 27. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land, and (f) such other factors as may be prescribed. There is no doubt that the last clause which refers to other factors must be construed as referring to factors ejusdem generis with those that have been previously enumerated. Section 13 provides for the suspension or remission of rent, and the conditions under which the said remission or suspension can be granted. It would thus be seen that the material provisions of the Act aim at giving relief to the tenants by fixing the maximum rent payable by them and by providing for a speedy machinery to consider their complaints about the unreasonableness of the rent claimed from them by their respective landlords. It is in the light of this policy of the Act which is writ large on the fact of these provisions that we have to consider the question as to whether the delegation made by s. 6 (2) suffers from the infirmity of excessive delegation. 7. Broadly stated s. 6(2) seeks to provide for the fixation of a lower rate of maximum rent area-wise. We have already seen that individual tenants are given the right to apply for the fixation of reasonable rent by s. 12, and specific factors have been specified which the Mamlatdar must consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other relevant sections to which we have referred, and having regard to the guidance which had been provided for fixing a reasonable rent under s. 12 (3), it would not be possible to hold that the power delegated to the Provincial Government by s. 6(2) suffers from the infirmity of excessive delegation. The fact that no minimum has been prescribed would not materially affect this position. 8. Mr. Limaye has then contended that even if s. 6(2) is valid the impugned notification is invalid because it offends against Art. 31 of the Constitution. He concedes that the Act itself is saved under Art. 31B since it is one of the Acts enumerated in the Ninth Schedule; but his argument is that the notification has in substance amended the provisions of s. 6(1) and thus it amounts to a fresh legislation to which Art. 31B cannot apply. There is no substance in this argument. If s. 6(2) is valid then the exercise of the power validly conferred on the Provincial Government cannot be treated as fresh legislation which offends against Art. 31. If the Act is saved by Art. 31B s. 6(2) is also saved, and the power must be held to be validly conferred on the Provincial Government, and a notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deliberately provided for a modification of the said maximum rent and that itself shows that the fixation of any maximum rent was not treated as immutable. If it was necessary to issue one notification under s. 6(2) it would follow by force of the same logic that circumstances may require the issue of a further notification. The fixation of agricultural rent depends upon so many uncertain factors which may vary from time to time and from place to place that it would be idle to contend that the Legislature wanted to fix the maximum only once, or, as Mr. Limaye concedes twice. Therefore the argument that the power to issue a notification has been exhausted cannot be sustained. 10. The last argument which Mr. Limaye faintly attempted to place before us was that the expression any particular area would not be applicable to the areas in which the appellants' lands are situated because, according to him, the expression should be construed in the light of the same expression used in s. 298(2)(a) of the Government of India Act, 1935. This argument is far-fetched and fatuous and need not be considered. 11. In the result the appeals fail and are dismissed with costs. K. Subba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above : it cannot include a change of policy. 17. Rajnarain Singh's Case [1955]1SCR290 , dealt with s. 3(1) of the Patna Administration Act, 1915, (Bihar and Orissa Act 1 of 1915) as amended by Patna Administration (Amendment) Act, 1928 (Bihar and Orissa Act IV of 1928) and with a notification issued by the Governor of Bihar picking out s. 194 out of the Bihar and Orissa Municipal Act of 1922, modifying it and extending it in its modified form to the Patna Administration and Patna Village areas. Bose, J., after pointing out the difference between Rajnarain Singh's Case [1955]1SCR290 , and the Delhi Laws Act Case [1951]2SCR747 observed at p. 303 thus : But even as the modification of the whole cannot be permitted to effect any essential change in the Act or an alteration in its policy, so also a modification of a part cannot be permitted to do that either. 18. This Court again in Harishankar Bagla v. The State of Madhya Pradesh 1954CriLJ1322 , considered the scope of the Delhi Laws Act Case ((195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on which a particular disease or condition is to be specified in the Schedule. It is not stated what facts or circumstances are to be taken into consideration to include a particular condition or disease. The power of specifying diseases and conditions as given in s. 3(d) must therefore be held to be going beyond permissible boundaries of valid delegation. 22. It is not necessary to multiply decisions; nor is it necessary to point out the subtle distinction between delegated legislation and conditional legislation. The law on the subject may be briefly stated thus : The Constitution confers a power and imposes a duty on the legislature to maker laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency. But there is a danger inherent in such a process of delegation. An overburdened legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixed by the State Government, enables the Mamlatdar to fix the amount of commutation in the manner prescribed. Sub-section (3) of s. 6 prohibits a land-lord from recovering any rent by way of crop-share or in excess of the commuted cash rent. Section 9 compels the land-lord to apply to the Mamlatdar, if the land-lord is receiving rent from any tenant in terms of service or labour, for commuting such rent into cash. Section 10 makes the landlord liable to pay compensation to the tenant if he contravenes the provisions of Sections 6, 7, 8 or 9. Section 11 prohibits the land-lord from collecting any cesses other than the rent lawfully payable in respect of the land. Section 12 enables the tenant to apply to the Mamlatdar for the fixation of reasonable rent in respect of the land in his possession and s. 12(3) lays down the factors the Mamlatdar has to take into consideration in fixing a reasonable rent. After fixing the rent, the Mamlatdar makes an order for payment of the rent to the land-lord and the rent so fixed shall hold good for a period of five years. There is also a provision for reduction of rent, if during the said period on account of deterioration of the land by floods or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alifying suitable basis indicate that the situation of the land in a particular area may also be a basis for fixing a lower rent. The situation of a land in a particular area cannot in itself afford a basis for fixing a specified rate of maximum rent. The words suitable basis in the alternative clause is so vague that in effect and substance they confer absolute and arbitrary discretion on the Provincial Government. What is the standard of suitability ? The standard of suitability is only what the Government thinks suitable. In this section the legislature in clearest terms abdicated its essential functions in favour of the executive authority without laying down any standard for its guidance. In effect it permitted the Government to amend s. 6(1) of the Act. To illustrate, the legislature fixes the maximum rent payable by a tenant to his landlord at X; the Mamlatdar after enquiry fixes Y as reasonable rent which is less than X; the Government in exercise of the power conferred under s. 6(2) can arbitrarily fix Z which is far less than the reasonable rent; with the result that the entire scheme promulgated by the legislature breaks. The Government also may select any small area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitrary power on the Provincial Government without laying down any legislative standard is in excess of the permissible limits of delegation. 27. The learned Additional Solicitor-General broadly contended that the policy of the legislature is to prevent rack renting and to fix a reasonable rent and, therefore any exercise of the power under s. 6(2) is guided by that policy. This is an extreme contention and, if accepted, will enable Parliament and legislatures to confer absolute and unguided powers on the executive. If a legislature can legally be permitted to lay down a broad policy in general terms and confer arbitrary powers on the executive for carrying it out, there will be an end of the doctrine of the rule of law. If the contention be correct, the legislature in the present case could have stated in the preamble that they were making the law for fixing the maximum rent and could have conferred an absolute power on the Government to fix suitable rents having regard to the circumstances of each case. Such a law cannot obviously be valid. When the decisions say that the legislature shall lay down the legislative policy and its formulation as a rule of conduct, they do no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
