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The certificate under article 133 of the Constitution was neither sought, nor granted on any ground touching the validity of the Notification, dated 28 4 1951. Ratio |
In the face of all this, it is now too late for the appellants to commit a volte face. Ratio |
Accordingly, we decline to entertain this new ground of challenge. Ratio |
The learned Counsel for the parties have, more or less, reiterated the same contentions which they had advanced in the High Court. Ratio |
On behalf of the appellants, it is contended that the power of modification conferred on the Central Government by section 2 of the Laws Act is not an unfettered power of delegated legislation but a subsidiary power conferred for the limited purpose of extension and application to a Union Territory, an enactment in for... |
It is maintained that only such modifications are permissible in the exercise of that power which are necessary to adapt and adjust such enactment to local conditions. ARG |
According to Shri Ashok Sen, the power given by section 2 is a power of conditional legislation which is different from the power of delegated legislation. ARG |
It is submitted that it is not a recurring power; it exhausts itself on extension, and in no case this power can be used to change the basic scheme and structure of the enactment or the legislative policy ingrained in it. ARG |
The submission is that the impugned notification, dated 7 12 1957, is bad because it has been issued more than 61 years after the extension of Bengal Act, and it attempts to change the re rquirement of section 6(2) as to "not less than three months notice" which P is the essence of the whole provision. ARG |
Reference has been made to this Court 's opinion in Re: Delhi Laws Act (supra) and the decision in Raj Narain Singh case (supra). ARG |
Shri Ashok Sen further submits that by the amending Act 20 of 1959, parliament did not put its seal of approval on the impugned notification or the changes sought to be made by it in section 6 of the Bengal Act. ARG |
It is stressed that the amending Act of 1959, did not touch section 6 at all and therefore it could not be said with any stretch of imagination, that Parliament had referentially or impliedly incorporated or approved the purported change made by the impugned notification, in the Bengal Act. ARG |
As against the above, Shri B. Sen, the learned Counsel for the Revenue submits that the impugned notification does not change the essential structure or the policy embodied in section 6(2) of the Bengal Act. ARG |
796 According to Counsel, the policy underlying section 6(2) is that reasonable notice of the Government 's intention to add to or omit anything from the Second Schedule must be given by publication in the official Gazette. ARG |
It is maintained that the requirement as to "not less than three months ' notice" in the section was not a matter of policy but one of detail or expedience; it was only directory, and the modification made by the impugned notification did not go beyond adjusting and adapting it to the local conditions of Delhi. ARG |
Bengal, it is pointed out, is a big, far flung State while the Territory of Delhi is a small, compact area and therefore, it would not be necessary or unreasonable to give a notice of less than three months for every amendment of the Schedule. ARG |
Reliance has been placed on this Court 's dictum in Raza Buland Sugar Co. 's case (supra). ARG |
It is argued that the power to add or omit from the Second Schedule conferred on the Government is in consonance with the accepted practice of the Legislature; that it is usual for the legislature to leave a discretion to the executive to determine details relating to the working of taxation laws, such as the selection... |
Reference has been made to the observations of this Court in Pt.Benarsi Das Bhanot vs State of Madhya Pradesh in the context of section 6(2) of the Central Provinces and Berar Sales Tax Act 1947. ARG |
Shri B. Sen further contends that the power of modification given by section 2 of the Laws Act, does not exhaust itself on first exercise; it can be exercised even subsequently if through oversight or otherwise, at the time of extension of the enactment the Central Government fails to adapt or modify certain provisions... |
In this connection support has been sought from the observations of Fazal Ali J. at p. 850 of the Report in Re: Delhi Laws Act (supra). ARG |
Our attention has also been invited to section 21 of the General Clauses Act which according to Counsel, gives power to the Central Government to add to, amend, vary or rescind any notification etc if the power to do so does not run counter to the policy of the legislature or affect any change in its essential features... |
Learned Counsel has further tried to support the reasoning of the appellate Bench of the High Court, that whatever infirmity may have existed in the impugned notification and the modification made there by in section 6(2), it was rectified and cured by Parliament when it passed the Amendment Act 20 of 1959. ARG |
It is urged that the Bengal Act together with the modifications made by notifications, dated 28 4 51, and 7 12 1957, must have been before Parliament when it considered and passed the Amendment Act of 1959. ARG |
Our attention has been invited to its preamble which is to the effect: "An Act further to amend the Bengal Finance (Sales Tax) Act, 1941, as in force in the Union Territory of Delhi," and also to the words "as in forcer in the Union Territory of Delhi" in section 2 of the amending Act. ARG |
:Reference has been made to this Court 's decisions in Venkatrao Esajirao 's case (supra), and Gwalior Rayon Silk Mfg.(Wvg.) Co. Ltd. The Assistant Commissioner of Sales tax and ors. ARG |
797 An alternative argument advanced by Shri B. Sen is that if in section 6(2) the requirement as to "not less than three months ' notice" was mandatory and a matter of legislative policy, then the exemptions from tax granted to Durries, pure silk etc.after the issue o the impugned notification must be treated non est ... |
It is argued that if this requirement was a sine qua non for amendment of the Second Schedule, it could not be treated mandatory in one situation and directory in another. ARG |
If it was mandatory then compliance with it would be absolutely necessary both for granting an exemption and withdrawing an exemption from tax. ARG |
In this view of the matter, according to Shri B. Sen, the withdrawal of the exemption through the impugned notification was a mere formality; the notifications simply declared the withdrawal of something which did not exist in the eye of law. Ratio |
Appellants cannot therefore have any cause of grievance if the invalid and still born exemptions were withdrawn by the questioned notifications. Ratio |
In reply to this last argument, learned Counsel for the appellants submit that this ground of defence was not pleaded by the Revenue in its affidavit before the learned Single Judge. ARG |
This, according to the Counsel, was a question of fact which required evidence for its determination, and was therefore required to be pleaded. ARG |
Since the Respondents did not do so, they should not have been allowed to take it for the first time at the time of arguments. Ratio |
Even otherwise proceeds the argument the Respondents are not competent to take this stand which is violative of the basic canon of natural justice, according to which no party can be allowed to take advantage of its own wrong. Ratio |
It is stressed that the object of the requirement of not less than three months ' notice, was to afford an opportunity to persons likely to be adversely affected to raise objections against the proposed withdrawal or curtailment of an exemption from tax. Ratio |
That being the case, only the persons aggrieved could have the necessary locus standi to complain of a non compliance with this requirement. Ratio |
In Re: Delhi Laws (supra) this Court inter alia examined the constitutional validity of section 2 of the Laws Act in the light of general principles relating to the nature, scope and limits of delegated legislation. PRE |
Section 2 as it then stood, was as follows: "The Central Government may, by notification in the official Gazette, extend to any Part State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State with such restrictions and modifications as it thinks fit any enactment which is in force in a Pa... |
" The Court by a majority held that the first part of this section which empowers the Central Government to extend to any Part State or to any part of such State with such modifications and restrictions as it 798 thinks fit any enactment which is in force in a Part A State, is intra vires, and that the latter part of t... |
Consequent upon this opinion, the latter part of the section was deleted by section 3 of the Repealing and Amending Act, 195 (Act XLVIlI of 1952) with effect from 2 8 1951. PRE |
The majority opinion in upholding the validity of the first portion of section 2 of the Laws Act drew a good deal from the observations of the Privy Council in Queen vs Burah wherein it was said: "If what has been done is legislation within the general scope of the affirmative words which give the power and if it viola... |
"Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships judgment) be well exercised, either absolutely or conditionally. PRE |
Legislation conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the legislature to persons in whom it places confidence, is no uncommon thing; and, in any circumstances it may be highly convenient." (emphasis supplies) PRE |
Before proceeding further, it will be proper to say a few words in regard to the argument that the power conferred by section 2 of the Laws Act is a power of conditional legislation and not a power of delegated legislation. Ratio |
In our opinion, no useful purpose will be served to pursue this line of argument because the distinction propounded between the two categories of legislative powers makes no difference, in principle. Ratio |
In either case, the person to whom the power is entrusted can do nothing beyond the limits which circumscribe the power; he has to act to use the words of Lord Selborne "within the general scope of the affirmative words which give the power" and without violating any "express conditions or restrictions by which that po... |
There is no magic in a name. Ratio |
Whether you call it the power of "conditional legislation" as Privy Council called it in Burah 's case (supra) or 'ancillary legislation ' as the Federal Court termed it in Choitram vs Commissioner of Income tax, Bihar or 'subsidiary legislation ' as Kania C.J. styled, it or whether you camouflage it under the veiling ... |
There is ample authority in support of the proposition that the power to extend and carry into operation an enactment with necessary modifications and adaptations is in truth and reality in the nature of a power of delegated legislation. Ratio |
In Re: Delhi Laws Act (supra) S.R. Das J. said that on strict analysis it was "nothing but a delegation of a fractional legislative power". PRE |
Anglin J. in Grays case regarded this what is called conditional legislation ' as "a very common instance of limited delegation. PRE |
More or less to the same effect is the view taken by Evatt J. of Australia in Dignams case. PRE |
Prof. Kennedy (vide his treatise 'Constitution of Canada ', 2nd Edn.p. 463), is also of opinion that 'conditional legislation ' is "a form of delegation". PRE |
We do not want to multiply authorities nor wish to carry this academic discussion to a final conclusion because it is not necessary for solution of the problem in hand. Ratio |
In the instant case, the precise question with which we are faced is whether the purported substitution of the words "such previous notice as is considers reasonable" for the words "not less than three months notice" in section 6(2) by the impugned notification dated 7th December, 1957, was in excess of the power of 'm... |
This question has to be answered in the light of the principles enunciated by this Court in Re: Delhi Laws Act relating to the nature and scope of this power. Ratio |
Out of the majority who upheld the validity of this provision of section 2 of the Laws Act, with which we are concerned, Fazal Ali J. explained the scope of the words "much modifications as it thinks fit" in section 2, thus: "These are not unfamiliar words and they are often used by careful draftsmen to enable laws whi... |
The power of introducing necessary restrictions and modifications is incidental to the power to apply or adapt the law, and in the context in which the provision as to modification occurs it cannot bear the sinister sense attributed to it. PRE |
The modifications are to be made within the framework of the Act and they cannot be such as to affect its identity or structure or the essential purposes to be served by it. PRE |
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." PRE |
Vivian Bose J. also observed in a similar strain, at p. 1124; 800 "The power to "restrict and modify" does not import the power to make essential changes. PRE |
It is confined to alterations of a minor character such as are necessary to make an Act intended for one area applicable to another and to bring it into harmony with laws already in being in the State, or to delete portions which are meant solely for another area. PRE |
To alter the essential character of an Act or to change it in material particulars is to legislate, and that, namely, the power to legislate, all authorities are agreed, cannot be delegated by a legislature which is not unfettered." PRE |
Mukherjea J. was of the view that the "essential legislative function" which consists in the determination or choosing of the legislative policy and of formally enacting that policy into a "binding rule of conduct" cannot be delegated. PRE |
Dealing with the construction of the words "restrictions" and "modification" in the Laws Act, the learned Judge said" at pages 1004 10O6: "The word "restrictions" . connotes limitation imposed on a particular provision so as to restrain its application or limit its scope, it does not by any means involve any change in ... |
It seems to me that in the context and used alongwith the word "restriction" the word " 'modification" has been employed also in a cognate sense, and it does not involve any material or substantial alteration. PRE |
The dictionary meaning of the expression "to modify" is to "tone down" or to "soften true rigidity, of the thing" or "to make partial changes without any radical alteration". PRE |
It would be quite reasonable to hold that the word "modification" in section 7 of the Delhi Laws Act (which is almost identical with the present section 2, Laws Act) means and signifies changes of such character as are necessary to make the statute which is sought to be extended able to the local conditions of the prov... |
I do not think that the executive Government is entitled to change the whole nature or policy underlying any particular Act or to take different portions from different statutes and prepare what has been described before us as "amalgam" of several laws. Ratio |
these things would be beyond the scope of the section itself." (emphasis supplied). Ratio |
S.R. Das J. (as he then was) delineated the scope of the power of "modification" given under section 7 of the (for short the Delhi Act) at p. 1089 as follows: "It may well be argued that the intention of section 7 of the was that the permissible modifications were to be such as would, after modification, leave the gene... |
One of the meanings of the word "modify" is given in the oxford Dictionary Vol.I, page 1269 as "to alter without radical transformation". Ratio |
If this meaning is given to the word "modification" in section 7 of the then the modifications contemplated 801 thereby were nothing more than adaptations which were included in the expressions mutatis mutandis and the "restrictions, limitations or proviso" mentioned in the several instances of conditional legislation ... |
It is to be noted that the language of s.7 of the Delhi Act was substantially the same as that of the first portion of section 2 of the Part C State Laws Act, as it then stood. Ratio |
What Das J. said about the scope of "restrictions and modifications" in the context of section 7 of the Delhi Act substantially applies to the ambit and meaning of these words occurring in section 2 of the Laws Act. Ratio |
Again, in Rajnarainsingh 's case (supra), Vivian Bose J. speaking for the Court, summed up the majority view in regard to the nature and scope of delegated legislation in Re: Delhi Laws (supra), thus: "In our opinion the majority view was that an executive authority can be authorised to modify either existing or future... |
Exactly what constitutes an essential 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". PRE |
Bearing in mind the principles and the scope and meaning of the expression "restrictions and modifications" explained in , let us now have a close look at section 2. PRE |
It will be clear that the primary power bestowed by the section on the Central Government, is one of extension, that is, bringing into operation and effect, in a Union Territory, an enactment already in force in a State. Ratio |
The discretion conferred by the Section to make 'restrictions and modifications ' in the enactment sought to be extended, is not a separate and independent power. Ratio |
It is an integral constituent of the powers of extension. Ratio |
It cannot be exercised apart from the power of extension. Ratio |
This is indubitably clear from the preposition "with" which immediately precedes the phrase "such restrictions and modifications" and conjoins it to the principal clause of the section which gives the power of extension. Ratio |
According to the Shorter Oxford Dictionary, one meaning of the word "with", (which accords here with the context), is "part of the same whole". Ratio |
The power given by section 2 exhausts itself on extension of the enactment; it cannot be exercised repeatedly or subsequently to such extension. Ratio |
It can be exercised only once, simultaneously with the extension of the enactment. Ratio |
This is one dimension of the statutory limits which circumscribe the power. Ratio |
The second is that the power cannot be used for a purpose other than that of extension. Ratio |
In the exercise of this power, only such "restrictions and modifications" can be validly engrafted in the enactment sought to be extended, which are necessary to bring it into operation and effect in the Union Territory. Ratio |
"Modifications" which are not necessary for, or ancillary and subservient to the purpose 802 of extension, are not permissible. Ratio |
And, only such "modifications" can be legitimately necessary for such purpose as are required to adjust, adapt and make the enactment suitable to the peculiar local conditions of the Union Territory for carrying it into operation and effect. Ratio |
In the context of the section, the words "restrictions and modifications" do not cover such alterations as involve a change in any essential feature, of the enactment or the legislative policy built into it. Ratio |
This is the third dimension of the limits that circumscribe the power. Ratio |
It is true that the word "such restrictions and modifications as it thinks fit", if construed literally and in isolation, appear to give unfettered power of amending and modifying the enactment sought to be extended. Ratio |
Such a wide construction must be eschewed lest the very validity of the section becomes vulnerable on account of the vice of excessive delegation. Ratio |
Moreover, such a construction would be repugnant to the context and the content of the section, read as a whole, and the statutory limits and conditions attaching to the exercise of the power. Ratio |
We must, therefore, confine the scope of the words "restrictions and modifications" to alterations of such a character which keep the inbuilt policy, essence and substance of the enactment sought to be extended, intact, and introduce only such peripheral or insubstantial changes which are appropriate and necessary to a... |
The impugned notification, dated 7 12 1957, transgresses the limits which circumscribe the scope and exercise of the power conferred by section 2 of the Laws Act, at least, in two respects. Ratio |
Firstly, the power has not been exercised contemporaneously with the extension or for the purposes of the extension of the Bengal Act to Delhi. Ratio |
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