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Case Number

C.W No. 517 of 1968

Advocates

For the Petitioner:— Mr. Ramesh Chandra, Advocate.
— Mr. R.L Tandon, Mr. S.S Chadha with Mr. Amarjit Singh, Advocates and Mrs. Shyamla Pappu, Sr. Central Government Counsel.

Judges

Mr. Justice Hardayal Hardy
Mr. Justice V.S. Deshpande
Mr. Justice M.R.A. Ansari

Acts

section 2 of the Ajmer Marwara (Extension of Laws) Act, 1947 and in section 2 of the part C States (Laws) Act, 1950
Section 73 of the Bombay Co-operative Societies Act had repealed the Co-operative Societies Act, 1912
SECTION 7 DELHI LAWS ACT 1912
Co-operative Societies Act 1912 or with section 73 of the Bombay Co-operative Societies Act 1925.
SECTION 2 UNION TERRITORIES LAWS ACT 1950
section 54 of the Bombay Co-operative Societies Act or Rules 35
Government of India Act, 1935 and the Constitution of India 1950
fails.(b) Unamended section 2 of the Part C States (Laws) Act, 1950
Section 73 of the Bombay Co-operative Societies Act 1925
Section 54 of the Bombay Co-operative Societies Act,
CO OPERATIVE SOCIETIES ACT 1912
section 17 (2) of the Government of India Act 1935
Section 3 (viii) of the General Clauses Act 1897)
Section 73. The Co-operative Societies Act, 1912
Bombay Co-operative Societies Act to Delhi.(a)
section 2 of the part C States Laws Act 1950)
Article 246 of the Constitution. Section 7
section 2 of part C State (Laws) Act 1950
Bombay Co-operative Societies Act, 1925.
Punjab Preamption (Amendment) Act, 1960
DELHI LAWS ACT 1912
Bombay Co-operative Societies Act
Government of India Act of 1919,
SECTION 7 DELHI LAWS ACT
Central Government by section 7
UNION TERRITORIES LAWS ACT 1950
section 73 of the Bombay Act
C States (Laws) Act, 1950.
Rule 35 of the Rules
DELHI LAWS ACT

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Smart Summary

Judgment Summary — V.S. Deshpande, J.

Factual and Procedural Background

The Bombay Co-operative Societies Act, 1925 was extended to Delhi by a Central Government notification dated 8-1-1949 under section 7 of the Delhi Laws Act, 1912, with modifications. Clause 12 of that notification modified Section 73 of the Bombay Act so that it purported to repeal the Co-operative Societies Act, 1912 "in so far as it applied to the province of Delhi."

Under Section 54 of the Bombay Co-operative Societies Act, a dispute between the petitioner and his employers, the C.P.W.D. Work Charge Staff Consumers Co-operative Society Ltd. (Respondent No. 1), was referred to the Registrar of Co-operative Societies (Respondent No. 2). The Registrar made an award dated 12-10-1966 directing the petitioner to pay Rs. 5,276.84 as principal, costs of Rs. 527/-, and interest at 8% per annum until realisation.

The petitioner challenged the validity of that award by writ petition, raising several grounds attacking (i) the power to extend the Bombay Act to Delhi; (ii) the validity of clause 12 modifying Section 73; (iii) validity/authentication of the 1949 notification; and (iv) the Registrar's jurisdiction (including grant of costs and interest). Respondents raised preliminary objections to the petition's maintainability. The Court considered preliminary objections, jurisdictional issues, the validity of the extension and modification, and the legality of the Registrar's award as challenged.

Legal Issues Presented

Whether the Central Government had the power under section 7 of the Delhi Laws Act, 1912 to extend the Bombay Co-operative Societies Act, 1925 to Delhi when the Co-operative Societies Act, 1912 was already applicable to Delhi.
Whether clause 12 of the notification (modifying Section 73 of the Bombay Act to repeal the 1912 Act “in so far as it applied to the province of Delhi”) was ultra vires the power conferred by section 7.
Whether the notification dated 8-1-1949 was validly authenticated when signed by a Deputy Secretary to the Central Government (i.e., whether the executive authentication was adequate given the purported legislative character of the act).
Whether the reference under Section 54 and the Registrar's proceedings complied with procedural requirements (including the operation of Rule 35) and whether the Registrar had jurisdiction to award costs and interest.

Arguments of the Parties

Petitioner's Arguments

The Co-operative Societies Act, 1912 already applied to Delhi; therefore the Central Government lacked power under section 7 to extend the Bombay Co-operative Societies Act, 1925 to Delhi.
The 8-1-1949 notification, in modifying Section 73 to state that the 1912 Act was repealed "in so far as it applied to Delhi," effectively repealed a central act by executive notification and was therefore beyond the power of the Central Government.
The notification was signed by a Deputy Secretary; neither the Governor General nor the Chief Commissioner personally applied their mind or exercised discretion in extending the Act, rendering the notification void.
The reference to the Registrar under Section 54 was inconsistent with Rule 35 of the Rules framed under the Bombay Act; accordingly the Registrar (Respondent No. 3) lacked jurisdiction to make the award, and in particular lacked jurisdiction to award costs and interest.

Respondents' Preliminary Objections

The petitioner delayed in challenging the validity of the extension and should have filed a writ petition earlier (two years and four months after the reference).
The petitioner first pursued statutory remedies before the Registrar and the Co-operative Tribunal and only now seeks writ relief after adverse outcomes; his conduct disentitles him to discretionary relief.
Objections regarding compliance with Section 54 or Rule 35 should have been raised before the Registrar and the Co-operative Tribunal, and cannot be raised for the first time in this Court by writ petition.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Smt. Marchi Devi v. Mathu Ram, AIR 1969 Delhi 267	Interpreting the purpose of section 7 (or its equivalents) as saving legislative effort by allowing extension of provincial enactments to territories like Delhi.	Used to support the proposition that section 7 may be used to extend provincial enactments to Delhi even if an older law existed there; cited to reject the petitioner's contention that extension was impermissible where a prior law existed.
Powell v. Apollo Candle Co. (1885) 10 A.C. 282 (Privy Council)	Executive acts taken under statutory authority are the acts of the legislature in the sense that duties levied under orders in council are levied by the authority of the enabling Act.	Invoked to show that extension of a provincial law by the executive under statutory power effectuates legislative policy and is not an arbitrary executive repeal; supports validity of executive extension where statute authorises it.
Chander Bhan v. Maha Singh, AIR 1965 Punjab 279	Discussed in context where the subject (stamp duties) was distributed across Central, State and Concurrent lists.	Distinguished on facts: the present case involved co-operative societies (a State subject post-1935/1950), so Chander Bhan was held inapplicable to the present situation.
Re Delhi Laws Act, 1912, 1951 SCR 747	Held that the legislature could not validly delegate to the executive the power to repeal corresponding laws, as that would surrender legislative policy making to the executive.	Applied to conclude that while the executive cannot be empowered to repeal an existing law by pure delegation, the power to extend (with modifications) a provincial statute that already contains a repeal (as enacted by the provincial legislature) is distinct and permissible.
Lachmi Narain v. Union of India, ILR 1971 (1) Delhi 107	Interpreted the word "modification" in section 7 of the Delhi Laws Act to permit changes necessary to make the extended statute suitable to local conditions.	Relied upon to uphold the validity of modifying Section 73 (substituting "province of Delhi" for "province of Bombay") as a permissible local adaptation when extending the Bombay Act to Delhi.
D.S. Sharma v. Union of India, AIR 1970 Delhi 250	Considered whether statutory notifications (subordinate legislation) could be authenticated by officers authorised under rules to authenticate executive orders; held executive action of issuing statutory notifications falls within executive power and such authentication is permissible.	Applied to hold that the Deputy Secretary's authentication of the 1949 notification was a valid exercise of executive power and the Court was precluded from inquiring whether the Governor General personally applied his mind.

Court's Reasoning and Analysis

The Court proceeded in stages: first addressing preliminary objections, then determining jurisdictional limits of the Registrar, and finally analysing the validity of the 1949 notification and its specific modification of Section 73.

Preliminary objections:

The Court rejected the first two preliminary objections (delay and petitioner first pursuing statutory remedies). It found the petitioner was entitled to exhaust statutory remedies before seeking writ relief and that filing in July 1968 (after tribunal decisions in January 1968) did not constitute undue delay.
The third preliminary objection (failure to raise procedural objections under Rule 35 before the Registrar/Tribunal) was sustained in part. Matters regarding the construction of Rule 35 (whether "issue" meant "receipt"), the dates of receipt, and whether communications were properly addressed to/received by the Registrar were questions fit for the Registrar and the Co-operative Tribunal; the petitioner could not raise them for the first time before this Court by writ.

Jurisdiction of the Registrar — costs and interest:

The Court held the Registrar's jurisdiction under Section 54 extended to the dispute referred (the principal sum). There was no separate dispute regarding costs or interest before the Registrar.
Rule 37 permitted costs "according to a scale laid down by him" (the Registrar), but the Court understood that no such scale had been laid down. Thus the Registrar lacked statutory authority to award costs or interest in this case.
Because the grant of costs and interest was beyond the Registrar's jurisdiction, that part of the award was not final under Section 57 and could be called in question in a civil court; it was also an error of law apparent on the face of the record correctable in writ jurisdiction (Articles 226 and 227).
Accordingly, the Court allowed the petitioner's ground challenging the grant of costs and interest (ground (d)) to the limited extent of quashing that part of the award; but the balance of the award remained.

Validity of extension under section 7 of the Delhi Laws Act:

The Court analysed the scope of section 7, noting its wording allowed the provincial Government (or the Central Government acting under the Act) to extend "any enactment which is in force in any part of British India" to Delhi with restrictions and modifications.
The Court observed the historical context: in 1912 provincial legislatures existed in Governor/Lt. Governor provinces but not in the Chief Commissioner's province (Delhi). Section 7 was designed to permit enactments from provinces to be extended to Delhi. The natural reading limited section 7 to enactments in force in provinces other than Delhi, but the language was wide and did not exclude extending enactments even where some law already existed in Delhi on the subject.
The Court reasoned that if section 7 were construed to prohibit extension where an older law existed in Delhi it would produce stagnation, be unworkable in practice (creating patchwork law), and frustrate legislative policy allowing improvement of local law by adoption of fuller provincial statutes.
The Court compared the situation to constitutional legislative competence examples (Article 246), concluding that section 7 did not impose similar subject-matter limits; therefore, extension of provincial enactments that overlap or conflict with existing Delhi law was permissible, with repugnancy resolved according to competence and principles of legislative conflict.
The Court relied on prior authority (Marchi Devi, Powell) to support this construction and distinguished Chander Bhan as inapposite because the distribution of legislative subjects there differed from the present context.

Power to modify Section 73 (clause 12 of notification):

The Court addressed the contention that clause 12 effectively repealed a central Act by executive action (impermissible delegation). It drew the distinction between the executive repealing an existing law (invalid delegation) and extending a provincial statute that already, by provincial enactment, repealed an earlier law in the province being extended.
Section 73 of the Bombay Act had already effected the repeal of the Co-operative Societies Act, 1912 insofar as the province of Bombay was concerned. When the Bombay Act was extended to Delhi, the phrase "province of Bombay" had no meaning; substituting "province of Delhi" was a necessary modification to make the extended statute intelligible and operable in Delhi. The Court relied on Lachmi Narain to hold that such modifications are within the scope of section 7.
Even if clause 12 were regarded as an invalid attempt by the Central Government to repeal the central Act, clause 12 was severable from the rest of the notification. If clause 12 were struck down, the Co-operative Societies Act, 1912 would continue to apply in Delhi; the remainder of the notification extending the Bombay Act would still be valid. The Court emphasized that the case did not turn on the validity of clause 12 and that severance would preserve the validity of the extension to the extent possible.

Authentication of the notification by Deputy Secretary:

The Court found the issue of the 1949 notification to be an exercise of executive power (issuance of statutory notifications), not legislative action in the sense of making Acts or Ordinances. The executive power to issue subordinate statutory instruments can be exercised by authorised officers.
Relying on D.S. Sharma, the Court held that the Deputy Secretary's authentication under the authority conferred (notification under section 17(2) of the Government of India Act 1935) was permissible and the Court could not interrogate whether the Governor General personally applied his mind.

Holding and Implications

Holding: The writ petition was substantially dismissed but allowed in a limited respect. The Court quashed the part of the Registrar's award granting costs and interest to Respondent No. 1 against the petitioner. The remainder of the award (the principal sum) was upheld. The Co-operative Tribunal's orders in appeal and revision were modified correspondingly (they are upheld except insofar as they sustained the grant of costs and interest). The Court made no order as to costs.

Implications:

Direct effect on the parties: the petitioner remains liable under the award for the principal sum directed by the Registrar; the award's provisions granting costs and interest are quashed and removed from enforceability.
On the issues of law addressed: the Court upheld the Central Government's power under section 7 to extend provincial enactments to Delhi with necessary modifications (including substituting relevant territorial references), and validated executive authentication of statutory notifications by authorised officers in the circumstances described. The Court recognized limits on executive power to repeal existing laws by delegation but drew a distinction where the provincial statute itself contained the repeal prior to extension.
The Court treated the objection to procedural irregularity under Rule 35 as a matter for the Registrar and Co-operative Tribunal and refused to entertain that objection for the first time by writ where it had not been previously raised there.
No broad new precedent beyond the application of existing authorities was announced by the Court; the decision applied and reconciled prior authorities to the facts of this case and emphasised severability where necessary to preserve valid portions of executive notifications and awards.

Order: The writ petition is dismissed except insofar as the award's grant of costs and interest is quashed; the remainder of the award and related tribunal orders are upheld and/or modified accordingly. No order as to costs.

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Faqir Chand Petitioner v. C.P.W.D Work Charged Staff Consumer'S Co-Operative Society & Others S

V.S Deshpande, J.:— The Bombay Co-operative Societies Act, 1925 was extended to Delhi by a notification dated 8-1-1949 by the Central Government acting under section 7 of the Delhi Laws Act, 1912, subject to certain modifications. Section 73 of the Bombay Co-operative Societies Act had repealed the Co-operative Societies Act, 1912 insofar as it applied to the province of Bombay. Clause 12 of the Notification modified section 73 of the said Act while extending it to Delhi in the following words:—

“For Section 73, the following section shall be substituted, namely: —

Section 73. The Co-operative Societies Act, 1912 in so far as it applied to the province of Delhi, is hereby repealed.”

Under Section 54 of the Bombay Co-operative Societies Act, a dispute between the petitioner and his employers, the C.P.W.D Work Charge Staff Consumers Co-operative Society Ltd. (Respondent No. 1) was referred to the Registrar of Co-operative Societies (Respondent No. 2). The dispute was decided by the award of the Registrar made on 12-10-66 directing the petitioner to pay to the respondent No. 1 Rs. 5276.84 as principal plus costs of Rs. 527/- together with interest at the rate of 8% per annum until realisation of the principal sum of Rs. 5276.84

The validity of this award has been challenged by this petition. Learned Counsel for the petitioner Shri Ramesh Chandra confined his argument only to the following grounds of challenge viz.:—

(a) the Co-operative Societies Act, 1912 already applied to Delhi and, therefore the Central Government had no power to extend the Bombay Co-operative Societies Act, 1925 to Delhi in 1949 under section 7 of the Delhi Laws Act, 1912;

(b) the notification dated 8-1-1949 extending the Bombay Co-operative Societies Act, 1925 to Delhi modified Section 73 of the said Act stating that the Co-operative Societies Act, 1912 in so far as it applied to Delhi, was repealed. The Central Government had no power to repeal the central act while extending the provincial enactment to Delhi. The whole of the notification extending the Bombay Co-operative Societies Act to Delhi was, therefore, void;

(c) the notification dated 8-1-1949 was signed by a Deputy Secretary to the Central Government but neither the Governor General nor the Chief Commissioner of Delhi applied his mind or exercised his discretion to extend the said Act to Delhi. The Notification was, therefore, void; and

(d) the reference to the Registrar under section 54 was contrary to the procedure prescribed in Rule 35 of the Rules made under the Bombay Co-operative Societies Act and the respondent No. 3 had, therefore, no jurisdiction to make the impugned award. At any rate he had no jurisdiction to grant costs and interest on the award to the respondent No. 1.

The respondents 1 and 2 denied the claim in the writ petition and urged the following preliminary objections to its maintainability:—

(i) the objections to the validity of the extension of the Bombay Co-operative Societies Act to Delhi should have been urged by the petitioner by way of a writ petition early to this court but he did so 2 years and 4 months after the reference of the dispute to the Registrar.

(ii) the petitioner had first tried to secure a favourable award from the Registrar and then from the Delhi Co-operative Tribunal (Respondent No. 4) and it is only after he failed to get one that he has now come to this court. His conduct disentitles him to the discretionary relief sought by him;

(iii) the objection that the reference of the dispute to the Registrar was in violation of section 54 of the Bombay Co-operative Societies Act or Rules 35 framed thereunder should have been urged before the Registrar and the Co-operative Tribunal. As the petitioner did not do so, he cannot raise this objection for the first time before this court.

It would be proper for us to dispose of the preliminary objections before considering the merits of the writ petition. It is true that the writ petition has not been filed expeditiously but the petitioner cannot be blamed if he chose to take the dispute before the arbitrator and refrain from challenging the validity of the extension of the statute till the award had become final. In fact if the petitioner had come to this court to challenge the validity of the statute, he would have been met with the objection that he was bound first to exhaust the statutory remedies before filing the writ petition. This is what he did and rightly so. Of course if the award had been favourable to him, he would have had no occasion to file this writ petition. It is only because the award has gone against him that he had to do so. But there is nothing blame worthy in this conduct and it does not by itself disentitle him to relief by way of writ petition, if he has otherwise a good case on merits. An appeal and then a revision filed against the award were ultimately disposed of by the Co-operative Tribunal (Respondent No. 4) only in January 1968. The petition was filed in July, 1968 and was, therefore, not unduly delayed.

First two preliminary objections have thus no force but the third preliminary objection is partly well founded. The dispute was referred to arbitration by the resolution of the respondent No. 1 dated 25-11-65. The notice under rule 35 was issued by the Registrar to the petitioner on 27-3-66. The petitioner says he received the notice on 6th April, 1966. On 16th April, 1966, he wrote to the Respondent No. 1 that he wanted the dispute to be referred to the arbitration of 3 arbitrators. He had to do so according to Rule 35 “within 15 days of the issue of such notice”. The learned counsel for the petitioner contended that the word “issue” in rule 35 should be construed to mean “receipt”. The construction of Rule 35 was a matter within the jurisdiction of the Registrar and also of the Co-operative Tribunal when the dispute was heard by the Registrar and the appeal and the revision against the award were heard by the Co-operative Tribunal. The petitioner was bound, therefore, to urge this contention before them. They would have also decided whether infact the notice was received by the petitioner on the 6th of April and whether the letter of the petitioner written on the 16th of April, 1966 to the respondent No. 1 was sufficient or whether the letter should have been written by him to the Registrar and finally whether the copy of the said letter was endorsed by him to the Registrar and whether it was ever received by the Registrar. All these questions could be decided only by the Registrar and the Co-operative Tribunal under the Bombay Co-operative Societies Act, 1925. As they were not urged before them the petitioner cannot urge them before this court by way of writ petition for the first time.

As to the grant of costs and interest, however, the jurisdiction of the Registrar under section 54 is restricted only to the dispute which is referred to him. The dispute was only regarding the principal sum. There was no claim and, therefore, no dispute regarding costs or interest. Under rule 37 the Registrar could award costs according to a scale laid down by him. It is understood that no such scale has been laid down by the Registrar. It is clear, therefore, that neither the terms of reference of the dispute nor rule 37 or any other provision of law authorised the Registrar to award costs or interest to respondent No. 1 against the petitioner. It is true that the petitioner could have disputed the legality of the grant of costs and interest in the appeal and revision before the co-operative tribunal. However, even if he did not so do, the grant of costs and interest were beyond the jurisdiction of the Registrar. In that respect, therefore, the decision of the Registrar is not final within the meaning of section 57 and is liable to be called in question in any civil court. The grant of costs and interest also constitutes an error of law apparent on the face of the record to be corrected by this court in exercise of the writ jurisdiction under Articles 226 and 227 of the Constitution. Only in this respect, the 4th contention of the petitioner included in ground No. (d) urged by his learned counsel is, therefore, allowed.

We shall now consider the contentions urged by the petitioner against the validity of the extension of the Bombay Co-operative Societies Act to Delhi.

(a) The authority of the Central Government to apply the Bombay Act to Delhi was based on section 7 of the Delhi Laws Act, 1912 which is as follows: —

“The provincial Government may, by notification in the official gazette, extend with such restrictions and modifications as it thinks fit, to the province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification.”

In 1912 when the Delhi Laws Act was passed local legislatures consisting of legislative councils of the Governors and Lt. Governors of the provinces such as Bombay, Madras, Bengal, North West provinces (U.P) and the Punjab were functioning with legislative powers confined to the provinces. But no such legislative council was set up for the Chief Commissioner's province. The central legislature, therefore, enacted the Delhi Laws Act 1912 to enable the Chief Commissioner, Delhi to extend “enactments in force in any part of British India” to Delhi. By the Government of India Act of 1919, the powers of the provincial legislative councils were extended to include; the right to repeal or alter any law made for the province before and after the Act of 1919 by any authority in British India though the previous sanction of the Governor General was required if the provincial legislation concerned certain matters- The Bombay Co-operative Societies, Act, 1925 was enacted with such previous sanction. Section 73 of the said act could, therefore repeal the Co-operative Societies Act, 1912 in so far as it applied to the province of Bombay.

The meaning of the word “any enactment which is in force in any part, of British India” is wide enough to include both Central as well as the provincial Acts, but the Central Act would have already been in force in the Chief Commissioner's province of Delhi. The intention of the legislature must, therefore have been to enable the provincial Government of Delhi to extend to Delhi only those enactments which were in force in any part of British India other than Delhi. As the provincial legislatures existed only in the provinces ruled by Governors and Lt. Governors but not in the Chief Commissioner's province, it would appear that it is only the enactments which were in force in the provinces but were not in force in the Chief Commissioner's province which must have been meant by section 7 of the Delhi Laws Act, to be extended to Delhi. This intention of the Central legislature seems to have been made clear in the subsequent enactments namely section 2 of the Ajmer Marwara (Extension of Laws) Act, 1947 and in section 2 of the part C States (Laws) Act, 1950 by using the words “any enactment which is in force in any other province” in the former and “any enactment which is in force in a part A State” in the latter.

While the power given to the Central Government under section 7 of the Delhi Laws Act, 1912, in general words has to be construed as being restricted to the extension of only those enactments which were in force in the province but were not in force in the Chief Commissioner's province of Delhi, there is nothing to indicate that the legislature intended to put any further restriction on this power. Contention (a) of the petitioner is that it is only when there is no law at all in the Chief Commissioner's province on a particular subject that the Central Government can exercise its power under section 7 of the Delhi Laws Act 1912 to extend a provincial law to Delhi. The intention of the legislature in enacting section 7 was to save the central legislature, the time and trouble involved in enacting such laws for application to the Chief Commissioner's province as were already in force in the Governor's province. (Smt. Marchi Devi v. Mathu Ram AIR 1969 Delhi 267 paragraph 1). There is nothing in the language of section 7 to show that an enactment in force in a province could not be extended thereunder to Delhi if some other law already existed in Delhi on the same subject. If the legislature had intended to so restrict the power, it would have said so. For instance, the spheres of legislative power assigned to parliament and state legislatures have been defined in Article 246 of the Constitution. Section 7 does not follow the pattern of Article 246 and does not say that enactment relating to particular subjects only can be extended to Delhi thereunder. Nor does it say that an improvement on the laws existing in the Chief Commissioner's provinces cannot be made by the Central Government by extending laws in force in the Governor's provinces to Delhi. Only a moment's reflection is sufficient to show that the legislature could never have intended to put such a restriction in section 7. Firstly such a restriction would have led to stagnation. An existing law in Delhi on a particular subject may be inadequate. A new law enacted in a province may be fuller and better. It is common sense that the legislature must have intended to empower the Central Government to extend the fuller and better law from the provinces to Delhi even if an older inadequate law on the same subject existed there. Secondly, such a restriction would have been unworkable. It would be impossible to decide whether an existing law relates to a particular subject which is covered by a provincial law. The existing law may cover only a part of the subject while the provincial law may cover more of it or certain new aspects of it. If only such parts of the provincial law were to be extended as were not dealt with by existing law then the legal system in the Chief Commissioner's province would be a crazy quilt of patches. Part of the law on the same subject would be in the existing law while the rest of it would have to be found in those portions of the provincial law which are extended to Delhi. Thirdly, the authority conferred on the Central Government by section 7 was by an Act of legislature. It reflected the policy of legislature. The Central Government was only carrying out the will and policy of the legislature in acting under section 7. In Powell v. Apollo Candle Co. (1885) 10 Appeal Cases 282, (1) it was urged before the Privy Council that the tax in question had been imposed by the Governor and not by the legislature who alone had the power to impose the tax. Their Lordships of the Judicial Committee of the Privy Council rejected the contention and pointed out that “the duties levied under the order in council are really levied by the authority of the Act under which the order is issued”. If, therefore, the provincial law extended to Delhi under section 7 conflicts with some existing law then this is the effect not of any arbitrary act of the Executive but of the carrying out of a Legislative policy by the Executive. Lastly, even before the Delhi Laws Act, 1912 was enacted the laws made by the Central Legislature were in force in the Governor's provinces side by side with the laws made by the provincial legislatures. In case of any repugnancy between the two or any parts of the two, the one which was competent to legislate on the particular subject and in the particular area or who had primacy over the other in case of conflict would have prevailed. For instance under Article 246 (2) of the Constitution both the Parliament and the State legislatures have powers to legislate on the subjects enumerated in list III in the 7th Schedule of the Constitution. The state legislature is not prevented from making a law on a subject merely because Parliament has already legislated on it. The State legislature would take care to see that its law does not conflict with the law made by Parliament. If it does so, then the law made by Parliament would prevail against the law made by the State legislature as provided in Article 254. In the same way the provincial law extended to Delhi, if inconsistent with an existing law, would either prevail over it or give way to it according to the respective competence of the legislatures to make laws on the particular subject.

The Co-operative Societies Act, 1912 was a Central Act only in the sense that it was enacted by a Central legislature. In 1912, however, there was legislative dyarchy but no federal distribution of legislative powers. This was why even the provincial legislature could make a law on the same subject. But after the passing of the Government of India Act, 1935 and the Constitution of India 1950 the subject of co-operative societies became an exclusively State subject. The Co-operative Societies Act, 1912, therefore, became by its nature law relating to the State List in the Seventh Schedule of the Constitution. It could be amended or repealed by the State legislatures. Of course, the Central legislature could legislate for co-operative societies only in respect of the Chief Commissioner's province. But it was precisely to avoid this that section 7 of the Delhi Laws Act, 1912 was enacted.

This situation is to be contrasted with the one obtaining in Chander Bhan v. Maha Singh, AIR 1965 Punjab 279 (2) where the subject of stamp duties was divided in all the three Lists, namely, the Central List, the State List and the Concurrent List of the Seventh Schedule of the Constitution. That decision would, therefore, have no bearing on the facts of the present case. The effect of the extension would be to keep both the Acts in force in Delhi side by side unless any part of the former was inconsistent with any part of the latter. It is only to the extent of irreconcilable repugnancy that any part of the former would be impliedly repealed by the latter. This consequence also must have been intended by the Central legislature in enacting section 7 of the Delhi Laws Act, 1912. It is not for this Court to prevent a conflict between an existing law and an extended law in a Chief Commissioner's province.

In Marchi v. Mathu Ram AIR 1969 Delhi 267 (3) it was argued that the Punjab Preamption (Amendment) Act, 1960 could not be extended to Himachal Pradesh under Section 2 of the Union Territories (Laws) Act, 1950 because the Punjab Preamption Act 1913 was already in force in Himachal Pradesh and that the Central Government had no power to repeal or abrogate an existing law by extending the amendment to the parent Act to Delhi. This argument was rejected after a full consideration. Section 2 of the Union Territories (Laws) Act, 1950 was in pari materia with section 7 of the Delhi Laws Act, 1912 in as much as the Union Territories (Laws) Act, 1950 was only an adaptation of the part C States (Laws) Act, 1950. The ratio of that decision is directly applicable to the present case. Contention (a), therefore, fails.

(b) Unamended section 2 of the Part C States (Laws) Act, 1950 after empowering the Central Government (which meant the Governor General or the Governor General in Council as the case may be in relation to anything done before the commencement of the Constitution in view of Section 3 (viii) of the General Clauses Act 1897) to extend any enactment in force in a part A State had given it a further power in the following words: —

“a provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than Central Act) which is for the time being applicable to that part C State.”

In Re Delhi Laws Act, 1912, 1951 SCR 747 (4) the Supreme Court held that the legislature could not validly delegate this latter power of repeal to the Government in as much as this would be surrendering legislative policy (which is the essential function of the legislature) to the executive Government. It is clear, therefore, that the notification which could be issued by the Government under section 7 of the Delhi Laws Act 1912 (which corresponded to the valid part of section 2 of the part C States Laws Act 1950) could not itself repeal any corresponding law, much less a Central Act, which was for the time being applicable to the Chief Commissioner's province of Delhi.

The repeal of the Co-operative Societies Act 1912 was effected by Section 73 of the Bombay Co-operative Societies Act 1925 in so far as the province of Bombay was concerned by section 73 of the latter Act long before the latter Act was extended to Delhi in 1949. The power to extend the Bombay Act to Delhi included the power to modify the Bombay Act. After fully considering the case law it was held by this court in Lachmi Narain… v. Union Of India… ILR 1971 (1) Delhi 107 (5) that “it would be quite reasonable to hold that the word “modification” in section 7 of the Delhi Laws Act means and signifies changes of such character as are necessary to make the statute which is sought to be extended suitable to the local conditions of the Chief Commissioner's province.” The original section 73 of the Bombay Act purported to repeal the Co-operative Societies Act 1912 only in its application to the province of Bombay. This reference to the province of Bombay would have no meaning in the said Act when extended to Delhi. It was necessary, therefore, to modify Section 73 to make it have a meaning in Delhi in extending it to Delhi. This is why the Section was modified to say that the Co-operative Societies Act 1912 is repealed in so far as at applies to the province of Delhi. The province of Delhi was substituted in place of the province of Bombay.

The learned counsel for the petitioner contends that this modification of the Bombay Act made by clause 12 of the impugned notification dated 8-1-1949 was ultra vires section 7 of the Delhi Laws Act 1912. For, it means that the Central Government itself repealed the Co-operative Societies Act 1912 in extending the Bombay Act to Delhi. According to the Supreme Court decision in the Delhi Laws Act case even the legislature could not empower the Government to do so. Therefore, this power could not be implied in section 7 of the Delhi Laws Act.

This argument over-looks the essential distinction between a repeal made by the Central Government of the existing law in providing for the extension of a new law to Delhi and the repeal already made by the State Legislature in the provincial law which is extended by the Central Government to Delhi with suitable modifications. The former was held to be excessive delegation of legislative power to the Central Government. But the latter is the legitimate power conferred on Central Government by section 7 of the Delhi Laws Act. This is why only the last part of section 2 of the part C States (Laws) Act 1950 was held to be void by the Supreme Court. For, it alone gave the executive power to repeal an existing law. On the other hand, the rest of section 2 of part C State (Laws) Act 1950 was held to be valid because it only enabled the Central Government to extend a law from a part A State to a part C State. The impugned notification does not repeal the Co-operative Societies Act 1912 while extending the Bombay Co-operative Societies Act 1925 to Delhi. Had it done so, it would have been invalid to that extent. On the contrary the notification merely extends the Bombay law to Delhi with suitable modifications. One of the modifications is to substitute Delhi for Bombay. This is all that has been done in section 73. The repeal of the Co-operative Societies Act 1912 had already been made long ago by the Bombay Legislature by enacting section 73. The Central Government did not do so while extending the Bombay Law to Delhi.

Even if, for the sake of argument, the modification of Section 73 is held to amount to a direct repeal of the Bombay Co-operative Societies Act 1912, by the Central Government, the only effect would be that clause 12 of the notification containing this modification of Section 73 would be invalid. The Co-operative Societies Act 1912 would then continue to be in force in Delhi. Clause 12 of the notification is severable from the rest of the notification for the same reason that the last part of section 2 of the part C States (Laws) Act 1950 was held to be severable from the rest of Section 2. The rest of the notification extending the Bombay Act to Delhi would at any rate be valid. In the present case we are not concerned either with the Co-operative Societies Act 1912 or with Section 73 of the Bombay Co-operative Societies Act 1925. Therefore, it would make no difference to the decision of this case whether clause 12 of the impugned notification is valid or not.

(c) The learned counsel contended that the issue of the impugned notification was a legislative Act. It was not, therefore, an exercise of the executive power of the Governor General. The Deputy Secretary to the Government of India who was authorised to authenticate orders and other instruments made and executed in the name of the Governor General by the notification No. 67/47-R, dated 19th August 1947, issued under section 17 (2) of the Government of India Act 1935 was not, therefore, competent to authenticate the impugned notification. This argument is not new. In D.S Sharma… v. Union Of India Etc.…S, AIR 1970 Delhi 250 (6), a Division Bench of this Court considered the same argument, viz., that the notification promulgating statutory Service Rules was a legislative act and it could not be authenticated by an officer authorised to authenticate the orders and other instruments made and executed in the name of the President according to Rules framed under Art. 77 (3) of the Constitution. It was pointed out there that the meaning of “executive power” and “executive action” in Articles 73 and 77 of the Constitution was wide enough to cover all power and action which was neither judicial nor legislative. The making of subordinate legislation or issuing of a notification under a statute by the Government or an authority empowered to do so by the statute was not legislation in the same sense in which the making of an Act or an Ordinance is so. The executive capacity of the Government or the President to act under various statutes, is different from their legislative capacity to make laws, for instance, under Articles 123 and 357 of the Constitution. In making statutes and ordinances, the President acts as legislature. But in acting under a statute he exercises executive power in the broad sense in as much as he is not making sovereign legislation in the exercise of legislative power given by the Constitution. No other procedure is laid down in the Constitution for issuing statutory notifications or statutory rules. Unless the petitioner can show that the Governor General was required to do so personally, the officers authorised under section 17 (2) of the Government of India Act 1935 which included a Deputy Secretary to the Government of India could do so. As pointed out in D.S Sharma's case the distinction between legislative, judicial and executive powers in the Constitution is based not on the nature of the act performed but on the nature of the authority performing the particular act. Therefore, all acts performed by the executive are in exercise of the executive power. The issue of the impugned notification was, therefore, in exercise of executive power and was properly authenticated by the Deputy Secretary to the Government of India. Due to that reason, this court is precluded from enquiry into the question whether the Governor General personally applied his mind before it was issued.

(d) This contention has already been dealt within considering the preliminary objections to the maintainability of the petition. The grant of costs and interest by the Registrar in making the award was beyond his jurisdiction and, therefore, void. This part of the award is, however severable from the rest of the award and does not vitiate it.

The writ petition is, therefore, substantially dismissed but is only allowed to a small extent. The last part of the award granting costs and interest to the respondent No. 1 against the petitioner is quashed. The rest of the award is upheld. The orders passed by the Co-operative Tribunal in appeal and revision would also stand modified to the extent that they uphold the rest of the award but not the grant of costs and interest. In the above circumstances we make no orders as to costs.

Order Accordingly.

Faqir Chand Petitioner v. C.P.W.D Work Charged Staff Consumer'S Co-Operative Society & Others S

Judgment Summary — V.S. Deshpande, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondents' Preliminary Objections

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Faqir Chand Petitioner v. C.P.W.D Work Charged Staff Consumer'S Co-Operative Society & Others S

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