Laxmibai v. State Of Madhya Pradesh

The Judgment of the Court was delivered by

Hidayatullah, J.:— This is a petition purporting to be under Article 226 of the Constitution for a writ of certiorari or mandamus or for directions & orders against the four non-applicants. The facts on which the petitioner seeks redress are stated briefly as follows:

[2] The petitioner owns a house No. 294B in Ward No. 9 Akola, district Akola. Non-applicant 4 Kewalchand is occupying a portion of the house as a tenant. The rent which was agreed upon between the parties was Rs. 100 per month.

2. Non-applicant 4 applied to the Bent Controller. Akola (Non-applicant 3) on 15-1-1948, under the House Rent Control Order for the fixation of a fair rent for the portion of the house in his occupation. The Bent Controller by his order passed on 22-8-1949 held that the fair rent for the premises should be Rs. 78 per month: vide Revenue case No. 244/86 of 1947–1948 of Akola. Against this order an appeal was taken to the Deputy Commissioner, Akola (Non-applicant 2), who further reduced the rent to Rs. 40 per month. The order of the Deputy Commissioner was passed on 30-6-1950—vide Revenue Application No. 15/86 of 1949–1950. The order of the Deputy Commissioner was communicated to the petitioner on or about 11-7-1950.

3. The petitioner seeks a declaration that the House Bent Control Order is void & of no effect & prays & that the orders against him be quashed. In view of the first relief the petitioner has also cited the State of Madhya Pradesh as an opposite party.

4. I have had the advantage of reading the opinion which my learned brother Mudholkar, J. proposes to deliver. I agree with him that the application must be dismissed, but since I have the misfortune to differ from some of his conclusions as well as some of his reasons I am recording my opinion separately.

5. I refrain from repeating here the arguments of the petitioner or the opposite party. These arguments are stated in the opinion of my learned brother Mudholkar, J. & will also appear in this opinion at proper places in the sequel.

6. The Central Provinces & Berar Regulation of Letting of Accommodation Act, 1946 (Act XI [11] of 1946—hereinafter called the Act—was passed by the Central Provinces & Berar Legislative Assembly & having been reserved for the consideration of the Governor-General was assented to by him on 28-9-1946. The assent was first published in the Central Provinces & Berar Gazette Extraordinary on 1-10-1946. It was a temporary Act inasmuch as it was provided by Sub-s. (3) of S. 1 that

“It shall come into force on 1-10-1946 & shall remain in operation for a period of one year.”

7. It would have normally expired on 30-9-1947 unless its life was extended by a suitable piece of legislation.

8. On 30-9-1947 the Governor of the Central Provinces & Berar promulgated the Central Provinces & Berar Regulation of Letting of Accommodation (Extending) Ordinance, 1947 (IV[4] of 1947)—hereinafter called the Ordinance — by which it was enacted:

“In sub-Section (3) of Section 1 of the Central Provinces & Berar Regulation of Letting of Accommodation Act, 1946 (XI[11] of 1946), for the words “remain in operation for a period of one year”, the following shall be substituted—

“cease to operate on such date as the Provincial Govt. may by notification, appoint in this behalf.”

9. The first question is whether the Act had ceased to be in force after 1-10-1917, the Ordinance notwithstanding.

10. Under Section 3 of the Central Provinces General Clauses Act (Act I[1] of 1914), an Act comes into operation on the day expressed in the Act, but if the day is not so expressed then it comes into operation on the day on which the assent thereto of the Governor, the Governor-General, or His Majesty, as the case may require, is first published in the Official Gazette. By Section 4 of the same Act it is necessary that the date of such publication should be printed above the title of the Act. & it forms part of the Act.

11. In the present case the date of the commencement of the Act was stated in the commencement clause, & we have not to resort to the date of publication. The date of the commencement of the Act was thus 1-10-1946. It is obvious that if the Ordinance was invalid for any reason the Act must he taken to have ceased to be law on the expiry of one year from its commencement.

12. The petitioner, therefore, challenges the Ordinance on various grounds. Shri M.N Phadke, learned counsel for the petitioner, pointed out that the Act being repugnant to certain provisions of existing Indian Law with respect to some of the matters enumerated in the concurrent legislative list in Sch. 7 of the Govt. of India Act, 1935, it was properly reserved for the consideration of the Governor General. This position is admitted by the other side & indeed is not open to question. Shri Phadke conceded that the assent of the Governor General was accorded to the Act & thus the requirements of Section 107 of the Govt. of India Act, 1935, were fulfilled. He argues, however, that an ordinance amending the Act must also be deemed to be on the same footing & under Section 88 of the Govt. of India Act, its promulgation was conditioned by the requirement that instructions of the Governor-General should have been obtained. He contends that the Ordinance does not show on its face that such instructions were obtained or that the Governor-General had assented to it.

13. The ordinance does no more than amend one section determining the life of the Act, & it is somewhat difficult to see how its enactment relates to any existing Indian Law in respect of any of the matters enumerated in the concurrent legisative list. However, I do not go into that broad question, & like my learned brother Mudholkar, J. I assume, without deciding the question, that instructions of the Governor-General were needed. The contention of Shri Phadke is that there is no proof that such instructions were ever obtained.

14. Apart from the presumption — Omnia Praesumuntur nite esse acta — which this Court would, in the absence of anything to the contrary, be entitled to draw, there is, as my learned brother Mudholkar, J. has pointed out, a copy of telegram which the State Govt. has produced. Further, the learned Advocate-General has assured us that the necessary instructions were obtained. This, in my opinion, is sufficient to dispose of this objection, & indeed the learned counsel for the petitioner did not press the point after the learned Advocate-General offered to place before the Court the original of the telegram I agree with my learned brother Mudholkar, J. that there is no law requiring the publication of the fact that such instructions were obtained before the Ordinance was promulgated.

15. It is further argued that an ordinance issued in pursuance of the instructions of the Governor-General acting in his discretion is deemed, under Section 88(3) proviso of the Govt. of Act, 1935, to be an Act of the Provincial Legislature which has been reserved for the consideration of the Governor-Genera & assented to by him, & thus the assent of the Governor-General ought to appear on the face of the ordinance published in the official Gazette. Reliance is placed for the first proposition upon a decision of Hemeon, J. & myself in Raonak Ali v. Emperor, I.L.R (1949) Nag. 785. That indeed follows from the proviso referred to above. For the second proposition reliance is placed Section 3(1) of the Central Provinces General Clauses Act, 1914.

16. It is argued that since the Ordinance does not state when it was to come into operation, & the Ordinance is to be treated as an Act of the Provincial Legislature, it could only come into farce on the date on which the assent of the Governor-General was published in the Official Gazette; & since such assent was never published, it must be held that the Ordinance, though enacted, was never brought into force & could not be considered by the Court. Reliance is placed upon In re Veerabhadrayya, A.I.R (37) 1950 Mad. 843.

17. My learned brother Mudholkar, J. has correctly stated that the argument must be rejected as untenable. The reason is so obvious that he did not consider it necessary to mention it. The reason is briefly this. The proviso which is called in aid by the learned counsel for the petitioner clearly shows that the fiction is created for a special purpose. The proviso reads as follows:

‘Provided that, for the purposes of the provisions of this Act relating to the effect of an Act of a Provincial Legislature which is repugnant to an Act of the Federal Legislature or an existing Indian Law with respect to a matter enumerated in the Concurrent Legislative List, an ordinance promulgated under this section in pursuance of Instructions from the Governor-General, acting in his discretion, shall be deemed to be an Act of the Provincial Legislature which has been reserved for the consideration of the Governor-General & assented to by him.’

18. The fiction is that though the ordinance is not in fact reserved for the consideration of the Governor-General it is to be treated as if it has been be reserved. The fiction places an ordinance on par with an Act in so far as Section 107 of the Govt. of India Act, 1935, is concerned, & dispenses with the necessity of reserving it for the consideration of the Governor-General. By obtaining the instructions of the Governor-General the Governor bridges over the bar of the non obstante clause. This was pointed out by me in Raonak Ali v. Emperor, I.L.R (1948) Nag. 785 at p. 788, & I have nothing add to what is stated there.

19. The learned counsel for the petitioner has misunderstood the effect of the provisions of the Central Provinces General Clauses Act. This is because he apparently overlooked one of its provisions. It is laid down in S. 28(b) of that Act that the provisions of that Act relating to Governor's Act apply to an ordinance. We are here concerned only with the commencement of the Ordinance. Section 3(1) of the Central Provinces General Clauses Act itself makes a difference in that behalf between a Provincial Act & a Governor's Act. It is manifest, therefore, that all the provisions of the first sub-section of S. 3 do not apply to an ordinance but only the last part. It is there enacted that a Governor's Act comes into operation on the day on which it is first published as an Act in the Official Gazette. Reading this provision mutatis mutandis in relation to an ordinance, it is clear that an ordinance also comes into operation on the day on which the ordinance is so published. No question of publication of instructions or assent thus arises.

20. This brings me to the main attack on the ordinance. As already stated the Act provided:

‘It shall come into force on 1-10-1946 & shall remain in operation for a period of one year.’

21. The ordinance which extended also to the whole of the Central Provinces & Berar modified Sub S. (3) of S. 1 by enacting that for the words ‘remain in operation for a period of one year’ the words ‘cease to operate on such date as the Provincial Govt. may, by notification, appoint in this behalf’ should be substituted.

22. Later, the Provincial Legislature passed the Central Provinces & Berar Regulation of Letting of Accommodation (Extending) Act, 1947 (Act XXXIX [39] of 1947)—hereinafter called the Amending Act—which also provided likewise. 16 is argued that the Ordinance as well as the amending Act are void inasmuch as they delegate the power to terminate the Act to the Provincial Govt. The power to terminate an Act is described as being tantamount to its repeal, which is a legislative function incapable of delegation by the legislature. It is contended, in other words, that how long an Act is to remain law must be declared by the legislature itself.

23. The effect of the amendment, it is urged, is to make a temporary Article into a perpetual Act with a discretion given to the Provincial Govt. to repeal the Article at any time. This was characterized as delegated legislation & as ultra vires of the Governor as well as the Provincial Legislature. Reliance was placed inter alia on Jatindranath v. Province of Bihar, A.I.R (36) 1949 F.C 175. For the opposite side it was contended that the enactment was a piece of conditional legislation fully within the competence of the Governor or the Provincial Legislature. Reliance was placed upon certain cases of the Privy Council.

24. My learned brother Mudholkar, J. is of the opinion that the enacting off the words ‘cease to operate on such date as the Provincial Govt. may, by notification, appoint in this behalf’ amounts to delegation, of legislative powers to the Provincial Govt. This delegation is held by my learned brother to be ultra vires of the Governor in his ordinance-making power & also of the Provincial Legislature. He holds that the ruling in Jatindranath's case applies, & thus the Article is a perpetual Act till it is repealed by the Legislature.

25. With all due respect to my learned brother I cannot agree with him on the two conclusions. In any judgment the decision of the Federal Court did not lay down so broad a proposition. In any event that decision is distinguishable. I am further of opinion that if the amendment must be held to be ultra vires it will fail to have any effect whatever & the Act must be taken to have expired at the end of the first year. I proceed now to give my reasons.

26. The Act was passed in 1946, and the Ordinance & the amending Act were both enacted in 1947. The matter thus falls to be considered under the Govt. of India Act, 1935. Under that Act, there was a certain measure of separation of powers of Govt. The separation was not so rigid as to make the three departments entirely self-contained. Legislative power in the provinces was entrusted to Provincial Legislatures consisting of His Majesty represented by the Governor & in some provinces one, & in others two chambers.

27. In addition to this, the Governor possessed certain legislative powers. He could promulgate ordinances or enact a Governor's Act under given circumstances. The powers of the Governor in either case were coterminous with those of the Provincial Legislature except in the matter of the duration of his enactments. In general, therefore, the Governor could make laws to the same extent as the Provincial Legislature, & those laws were subject to disallowance in the same manner as those of the Provincial Legislature.

28. One point of distinction between the Federal Court decision & the present case is noticeable at the very start. There the question was about the validity of certain notifications of the Governor extending the Bihar Maintenance of Public Order Act, 1947, to Chhota Nagpur Division & the Santhal Parganas District.

29. Now it has to be noticed that the powers of the Provincial Legislatures did not extend to the enacting of laws for these Districts. These areas were classed as excluded or partially excluded areas, for which special provisions were made in chap. V of the Govt. of India Act, 1935. S. 92 provided for legislative machinery for these areas as follows:

‘(1) The executive authority of a Province extends to excluded & partially excluded areas therein, but, notwithstanding anything in this Act, no Act of the Federal Legislature or of the Provincial Legislature shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, & the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit.

(2) The Governor may make regulations for the peace & good government of any area in a Province which is for the time being an excluded area, or a partially excluded area, & any regulations so made may repeal or amend any Act of the Federal Legislature or of the Provincial Legislature, or any existing Indian Law, which is for the time being applicable to the area in question.

Regulations made under this sub-section shall be submitted forthwith to the Governor-General & until assented to by him in his discretion shall have no effect, & the provisions of this Part of this Act with respect to the power of His Majesty to disallow Acts shall apply in relation to any such regulations assented to by the Governor-General as they apply in relation to Acts of a Provincial Legislature assented to by him.

(3) The Governor shall, as respects any area in a Province which is for the time being an excluded area, exercise his function in his discretion.’

30. It would appear from this that in so far as the excluded & partially excluded areas were concerned the Governor was the sole legislature. He could, while acting in this behalf for the peace & good government of these areas, make Regulations by which he could repeal or amend any Act of the Federal or Provincial Legislature or any existing Indian Law which was for the time being applicable to the area in question. It is not necessary to adverb to the vast connotation underlying the words ‘peace & good government’ except to say that they authorized the utmost discretion of enactment for the attainment of the objects pointed to: See Riel v. Reg., (1885) 10 A.C 675. This power of the Governor, which was subject only to the assent of the Governor General, is so clearly legislative in character that no doubt can even be raised.

31. Besides Regulations made by him, the Governor could also extend any Act of the Federal or Provincial Legislature to those areas by notifications, & while doing so could make such exceptions or modifications as he thought fit. The nature of this power came in for consideration by the Federal Court in Chatturam v. Commissioner of Income-tax, Bihar, 1947 F.L.J 92 & Kania, J. (as he then was) observed as follows:

‘It was next argued that Section 92 of the Constitution Act did not give legislative powers to the Governor in respect of these areas, but it was only a delegation of administrative authority. This argument cannot be accepted. The first part of S. 92(1) deals with executive authority, while the latter part of the same sub-section deals with the functions of the Governor in respect of Acts of the Federal Legislature or Provincial Legislature. By that part of the sub-section, the Governor is given authority, by notification, to direct that a certain Act either of the Federal or Provincial Legislature will apply to a particular area or a portion of that area. He is farther given power to direct that the same shall apply subject to such exceptions & modifications as he thinks fit. By the last words mentioned above, the Governor is, therefore, authorised either to exclude from its operation certain section or portions of sections of the Act of a Federal or Provincial Legislature & also he is given authority to make modification a therein. The right to modify an Act of the Legislature can only be legislative power and not administrative power. In making modifications, the whole aspect of an Act, or a section may be changed. If so, it is clearly the exercise of legislative powers.”

32. All this shows that in so far as the Province was concerned the source of legislation was the Provincial Legislature, or the Governor promulgating ordinances or enacting Governor's Acts. For the excluded or partially excluded areas the source of legislation was the Governor either enacting Regulations or applying Federal or Provincial Acts with or without adaptations. In either case the exercise of the power by the Governor was legislative. These facts must be borne in mind before trying to find out the ratio decidendi in Jatindranath's case.

33. Now the powers of Legislatures each as were established in India for the Provinces by the Constitution Act, 1935, were considered on more than one occasion by the Judicial Committee. Those cases are well known. Lefroy speaking of these pronouncements stated:

‘Now it may well be doubted whether there are to be found in the judgments of any Court dicta, more pregnant & far reaching or if one may use such an expression of judicial utterances, more statesmanlike, than the utterances of the Privy Council as to the plenary character of Legislative powers.’ Lefroy Canada's Federal System, p. 76.

34. Two of these cases are cited by Kania, C.J, namely, Queen v. Burah, 5 I.A 178, & Russell v. The Queen, (1882) 7 A.C 829, & the principles laid down there have been applied to Jatindranath's case. It is necessary, therefore, to see what principles were laid down by the Privy Council in these two & other cases & what is the exact question decided in the Federal Court case.

35. Before dealing with this subject proper, it appears necessary to make a few general observations about some fundamental aspects of what Ilbert designated ‘delegated legislation’. Their Lordships of the Federal Court take these fundamental aspects into account while pronouncing upon the validity of the Bihar Act as well as the notifications issued by the Governor under it.

36. Delegation of certain powers to an outside agency by the legislature is only too well known. It is a common feature of Parliamentary legislation in England; it is also resorted to in America; & India & the Dominions have been no exception. The considerations in all these countries are different depending upon the constitutions of these countries, & I shall briefly point out what these differences are. That will throw light upon the actual decision in Jatindranath's case & would also show how it is distinguishable from the present case.

37. In England the supremacy of Parliament is so ‘transcendent & absolute’ that delegation of legislation to outside agencies is seldom questioned. Parliamentary legislation, nowadays, always depends upon subsidiary legislation. The most cogent reason, as stated by Anson, for Parliament to legislate in this manner is the shortage of Parliament's time. Once the policy underlying an Act has been debated, its sections & their principles examined, all interests affected by it consulted & the conflicting views considered, amendments made & final decision taken, the working out of details & the administration of the Act can with advantage be left to an outside agency. As observed by Jennings in his book ‘The Law & the Constitution’, p. 274:

‘The practice of delegating “legislative” power is one of respectable antiquity & subject to limitations, it has been approved by the Committee on Ministers’ powers, though it was considered that certain safeguard should always be provided, & that certain kinds of delegation should be used only in exceptional circumstances. In other words, the doctrine of the separation of powers does not enable a clear distinction to be drawn as a matter of analysis, & in any case does not assist in determining what functions should be exercised by Parliament & what by the administrative authorities.’

38. These limitations need not detain us at the moment as they deal with the adoption of a regularized system of administrative Courts & the establishment of a committee of Parliament to scrutinize such legislation. How this has worked in recent times may be seen from Modern Law Review (1949), p. 297.

39. As I have said above, delegated legislation is frequently resorted to in England. Sir Cyril Carr in his lectures gave examples of which I quote a few here. The Companies Act of 1908 (8 E. VII, C. 69, S. 118) contained certain tables & forms in sch. 1, but it allowed the Board of Trade to vary the tables & to add to those forms. A schedule to the Metropolitan Police Act of 1839 contained a table of fees for taking out a summons or a warrant & so on. A later Act in 1897 provided that this table might be altered by the Home Office.

40. The powers of amendment have been allowed to go further than amendment of schedules & forms. Section 20(6) of the Mental Treatment Act, 1930, allows an order of the Minister of Health to modify the wording of any enactment. The Housing Act 1930, provided that the Rules inserted in the Act could be modified by the Rules Committee later. See also 20 & 21 Geo V., c. 39, S. 61 (Sch. 4); 20 & 21 Geo. V., c. 50. Sch. I part III, para. 6; 18 & 19 vict., c. 122, S. 55; 17 & 18 vict., c. 104. Examples can be multiplied. Indeed, it may be said without fear of contradiction that many matters which were dealt with directly by statutes are now un-objectionably dealt with by rule or order.

41. One aspect of such delegation is the inclusion in Statutes of what is called ‘the appointed day’ clause Sir Cyril Carr gives examples of these also. Thus the Divorce Act of 1857 contained the following clause:

‘This Act shall come into force on such day not sooner than the first day of January 1858, as Her Majesty shall by order in Council appoint…’

42. The Local Govt. Act of 1888 (which is more in point here) provided:

“… the appointed day for the purpose of this Act shall… be the first day of April next… or such other day earlier or later as the Local Govt. Board may appoint…’

43. Examples of such ‘appointed day’ may be gathered in abundance from the Govt. of India Act, 1935. As Carr says:

‘The appointed day device can be & frequently is, elaborated by providing that different days may be appointed for different purposes & for different provisions of the Act, for different areas and for different persons or classes of persons……The same device which is used for bringing enactments into operation can also be used for revoking them. Sometimes the process of switching on the new law will automatically switch off the old. The power to revoke enactments on some date to be fixed by delegated legislation is especially useful at a time when much temporary & rather experimental law is in force for reason connected with the war.’

44. The learned author gives the examples of 25 H. VIII, C. 21, S. 29 (The Act concerning Peter-pence & Dispensations) & the ‘sweeping provisions of 25 H. VIII, c. 17 (repeal by successor of Henry VIII on reaching 24 years of age of any statute passed during his minority).’ Of modern Acts the learned author gives one example, namely, the provisions temporarily limiting trial by jury & temporarily suspending grand juries which were made revocable by Order in Council under the Administration of Justice Act, 1920. I would add the example in Section 310 of the Govt. of India Act, 1935. The present Constitution of India also affords numerous instances of such delegation.

45. All this is true of any legislature sovereign in the true sense of the term. As observed above, the delegation of certain legislative powers to outside agency by what is called ‘a Henry VIII clause’ has become a common feature of Parliamentary legislation, which Parliament in England in the supremacy of its power can always employ. It may, however, be observed that in England Parliament cannot set up a parallel legislature & give it a power which would be in negation of its own powers. The leading case is Stockdale v. Hansard, (1839) 9 A. & E. 1 where Lord Denman, C.J observed at p. 108:

‘The supremacy of Parliament, the foundation on which the claim is made to rest, appears to me completely to overturn it, because the House of Commons is not the Parliament, but only a co-ordinate & component part of the Parliament. That sovereign power can make & unmake laws, but the concurrence of the three legislative estates is necessary; the resolution of any of them cannot alter the law, or place anyone beyond its control. The proposition is, therefore, wholly untenable, & abhorrent to the first principles of the Constitution of England.’

46. From this it is to be concluded that barring the power to create another Parliament (if that word be permissible) delegation of certain legislative functions to an outside agency is not only possible but permissible in England, & is a practice only too frequently followed.

47. In America the separation of powers is more rigid than in England. The Federal Constitution, unlike certain constitutions of the States, contains no specific declaration concerning the separation of powers. The principle is derived from S. 1 of Article I:

‘S. 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate & House of Representatives.’

48. From this it has been frequently held that legislative powers cannot be delegated to another branch.

49. The tripartite theory of separation of Governmental powers, though not new at the time of Montesquieu, was regarded by him albeit erroneously, as a most laudable feature of the English Constitution. This theory was applied for the first time in America. In the Federal list No. 47 it is mentioned how the Constitution makers worked to achieve this purpose. The extremes to which this misunderstood doctrine was carried is exemplified by the Constitution of Massachusetts which declares

‘that the legislative departments shall never exercise the executive & judicial powers or either of them; the executive shall never exercise the legislative & judicial powers, or either of them; the judicial shall never exercise the legislative & executive powers or either of them.’

50. This was of course the ideal state according to Montesquieu. Such declarations are not to be found in the other States, nor has the Supreme Court declared that such a result necessarily flows from the vesting of the legislative powers exclusively in the legislature.

51. In spite of this rigidity the subject of delegated legislation has received more attention in America than in any other country. Indeed, the Donoughmore Committee attracted far less attention in England than it did in America as is obvious from the appointment of the Moreland Commission, the Brownlow Committee, & the Acheson Committee. It had been stated by the First Parliamentary Counsel before the Donoughmore Committee that

‘it would be impossible to produce the amount & the kind of legislation which Parliament desires to pass & which the people of this country are supposed to want, if it became necessary to insert in the Acts of Parliament themselves any considerable portion of what is now left to delegated legislation.’

52. It was also noticed in America (as Lowell & others had said long ago) that English & American Statutes were generally overburdened with detail & tried to provide in advance for all contingencies. It was held that it was futile to resist ‘the inevitable displaying’ nostalgic yearnings for an era that has passed.’ All that, of course, is history & has led to an amount of literature in America which is enormous in extent. (See Willis Constitutional Law footnotes.)

53. The leading case in America is Field v. Clark, (1892) 143 U.S 649 in which the validity of the McKinley Act was called in question, where the following passage from the Pennsylvania Court in Lockes appeal (72 Pa. S.R 498) is quoted with approval:

‘The Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of Govt. There are many things upon which wise and useful legislation must depend which cannot be known to the law making power, & must, therefore, be subject of inquiry and determination outside the halls of legislation.’

54. In America the delegation of legislative power is subject to other restrictions. Legislative power itself is understood to be delegated by the people to the legislatures, & the idea underlying this delegation leads to an inference which is best described in the words of Locke:

‘The legislature neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have.’ (Looke on Civil Govt. S. 142)

55. It is for this reason the maxim delegata potestas non-potest delegare has often been invoked.

56. In spite of these limitations delegated legislation is not infrequent. The reason for this is to be found in the Hot Oil case, Panama defining Co. v. A.D Ryan, 293 U.S 388 which is to the following effect:

“Since legislation must often be adopted to complex conditions involving a host of details with which the legislature cannot deal directly, the constitutional inhibition against delegating legislative authority does not deny to the legislature the necessary resources of flexibility & practicability, enabling it to lay down policies & establish standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits & the determination of facts to which the policy as declared by the legislature shall apply. Without this power, legislature would often be faced with the anomaly of possessing a power over a given subject, but being unable to exercise it.’ See also United States v. Rock Royal Co-operative, 307 U.S 533.

57. See also United States v. Rock Royal Co-operative, 307 U.S 533.

58. The controversy above delegated legislation in America is somewhat recent.

‘Prior to 1935 no statute had been held invalid because of an unconstitutional delegation of power to the executive, in each instance the standard set up by the legislature was held to be sufficiently ‘definite, although some rather vague criteria were thus sustained.’ See Gertsenberg: American Constitutional Law, p. 74, Note 6.

59. Cooley gives the instances & extent of such delegation. In his Edn. 8 at p. 227 the learned author states:

‘It is not always essential that a legislative act should be a completed statute which must in any event taka affect as law, at the time it leaves the hands of the legislative department. A statute may be conditional & its taking effect may be made to depend upon some subsequent event.

‘The maxim that power conferred upon the legislature to make laws cannot be delegated to any other authority does not preclude the legislature from delegating any power not legislative which it may itself rightfully exercise. It may confer an authority in relation to the execution of a law which may involve discretion, but such authority must be exercised under & in pursuance of the law. The legislature must declare the policy of the law & fix the legal principles which are to control in given cases; but an administrative officer or body may be invested with the power to ascertain the facts & conditions to which the policy & principles apply. If this could not be done there would be infinite confusion in the laws, & in an effort to detail & to particularize, they would miss sufficiency both in provision & execution.’ (pp. 227-230).

60. Cooley sums up the position earlier in his text by saying:

‘One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority there it must remain; & by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, & patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute, the judgment, wisdom, & patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.’ (ibid p. 224).

61. On the narrow question of ‘the appointed day’ Cooley observes:

‘It would seem, however, that if a legislative Act is, by its terms, to take effect in any contingency, it is not unconstitutional to make the time when it shall take effect depend upon the event of a popular vote being for or against it, the time of its going into operation being postponed to a later day in the latter contingency…. It is not to be denied, however, that there is considerable authority against the right of legislative delegation in these cases.’ (ibid pp. 243, 244).

62. It my be mentioned that these cases refer to ‘initiative & referendum” which is dealt with differently in connexion with the local form of Govt. & the laws of the State at large.

63. To conclude, therefore, the supremacy of the legislatures in America is sometimes curtailed by the constitution or by necessary implications arising from a too strict adherence to the doctrines of Montesquieu. In every case of delegated legislation, the legislature predetermines the conditions, contingencies, exigencies & the like, but having done that, delegation is permissible including initiative & referendum & the appointing of the date of the commencement & termination of an Act. To sustain delegation various devices are resorted to. This would not have been necessary if legislatures in America were like the English Parliament. The supremacy of legislative power in this behalf is not so vast as in England because the legislatures in America are delegates of the people & must, by the nature of their constitution or constitution is, legislate themselves.

64. The position of the legislatures of the dominions, as well as of India under the Constitution Act, 1935, now remains to be examined. The question of the colonial as well as Indian legislatures in connexion with the delegation of powers has been before the Judicial Committee on several occasions, A the leading authorities on the subject will only be examined by me here.

65. It is now well-settled that such legislatures are not to be regarded as the delegatee of the Imperial Parliament whose Acts created them & determined their powers. When such legislatures make laws they act, not as delegates of the Imperial Parliament but as sovereign legislatures within the limits created by the various constitutions, as supreme as Parliament itself.

66. One limitation was indicated in Webb v. Outtrim, 1907-A.C. 81, where it was laid down at p. 88 as follows:

‘Every Act of the Victorian Council & Assembly requires the assent of the Crown, but when it is assented to it becomes an Act of Parliament as much as any Imperial Act, though the elements by which it is authorised are different.”

67. Another limitation arises from the constitution which gives them authority & the restrictions imposed thereby.

68. No question of agency arises, & the principle delegata potestas non potest delegare does not apply to them. But the powers of these legislatures, though they are described as supreme, are really not so. Their powers are limited by the grant or the instrument which creates them & gives them power, & it is on the terms of the instrument constituting them that the delegation of their powers is sometimes questioned.

69. This happens when the authority to make laws which was vested in them is parted with by them in a manner contrary to the instrument to which they owe their existence. Before a law by which some power is delegated is upheld it must be shown that the law emanates from the designated authority & no other. In all cases in which delegation of one kind or another has been upheld the Privy Council has always demonstrated that there was no surrender of its powers by the legislature in favour of another body of their creation & nomination. And the Privy Council having found that the delegation was in fact by an Act wherein the legislature had exercised its own discretion over the subject-matter, such delegation has been upheld. Where, however, the delegation amounted to the creation & ‘endowing with its own capacity a new legislative power not created by the Act to which the legislature owed its own existence’ it was disallowed.

70. I intend now to deal with the leading cases on both these aspects. The first is Queen v. Burah, (1878) 3 A.C 889. By Act XXII[22] of 1869 of the Indian Legislature the territory known as the Garo Hills was removed from the jurisdiction of the Courts of Civil & Criminal Judicature & from the control of the offices of revenue constituted by the laws then in force or thereafter to be passed unless in the latter case the territory was specially named therein. All these matters were vested in the Lieutenant-Governor, who was empowered to appoint tribunals for those purposes, subject to his own direction & control. By S. 8 of that Act, the Lieutenant-Governor was empowered to extend to those territories any law providing also by whom any powers or duties incident to the provisions so extended were to be exercised or performed & to make any order in relation thereto. By S. 9, the Lieutenant-Governor was further empowered as follows:

The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Naga Hills, & to such portion of the Khasi Hills as for the time being forms part of British India. Every such notification shall specify the boundaries of the territories to which it applies’.

71. When the Lieutenant Governor issued the notification under S. 9, it was challenged & the Calcutta High Court held by a majority that the notification had no legal force or effect in removing the territory named in the notification from the jurisdiction of the High Court in as much as the Governor-General of India in Council possessed no power under the Councils Act, 1861, to delegate such authority to the Lieutenant-Governor. Their Lordships observed as follows:

‘But their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, & that it rests upon a mistaken view of the powers of the Indian Legislature, & indeed of the nature & principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created if, & it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, & was intended to have, plenary powers of legislation, as large & of the same nature, as those of Parliament itself. The established Courts of Justices when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; & the only way in which they can properly do so, is by looking to the terms of instrument by which, affirmatively, the legislative powers were created, & by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, & if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions & restrictions.’

[Underlining (here italicised) is by me.]

72. Their Lordships observe in a later portion of their judgment:

“The Legislature determined that, so far, a certain change should take place; but that it was expedient to leave the time, & the manner, of carrying it into effect to the discretion of the Lieutenant-Governor; & also that the laws which were or might be in force in the other territories subject to the same Govt. were such as might be fit & proper to apply to this district also; but that, as it was not certain that all those laws & every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieutenant-Governor……………Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant-Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them world be due to any other legislative authority than that of the Governor-General in Council. Their whole operation is directly & immediately, under & by virtue of this Act (XXII of [22] of 1869) itself. The proper Legislature has exercised its judgment as to place, person, laws, powers; & the result of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. 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. 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; & in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it: & it cannot be supposed that the Imperial Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers which it from to time conferred.”

73. It is to be noted that in deciding this question their Lordships refer to a large number of Acts in which similar delegation had been made. Their Lordships observed;

“If their Lordships were to adopt the view of the majority of the High Court, they would (unless distinctions were made on grounds beyond the competency of the judicial office) be easting doubt upon the validity of a long course of legislation, appropriate, as far as they can judge, to the peculiar circumstances of India; great part of which belongs to the period antecedent to the year 1861, & must therefore (as Sir Richard Garth well observed) be presumed to have been known to, & in the view of, the Imperial Parliament, when the Councils Act of that year was passed. For such doubt their Lordships are unable to discover any foundation, either in the affirmative or in the negative words of that Act.”

74. One sentence which is often missed in this weighty pronouncement & which is of vital consequence in connexion with Jatindranath's case is to the following effect:

‘Their Lordships agree that the Governor-General in Council could not by any form of enactment, create in India, & arm with general legislative authority, a new legislative power, not created or authorized by the Councils Act.’

75. I shall revert to this observation later, as in my opinion it furnishes the true test to apply to Jatindranath's case while ascertaining its ratio decidendi.

76. The next case of the Judicial Committee is Russell v. Queen, (1882) 7 A.C 829. In that case certain provisions of the Canada Temperance Act, 1878, were challenged as amounting to delegated legislation. These provisions concerned the mode of bringing the second part of the Act into force. Briefly stated the procedure was that if one-fourth of the electors of any county or city in the Dominion petitioned to the Governor in Council praying that the second part of the Act should be in force & take effect in such county or city, the Governor-General was to arrange for a poll & if the petition was adopted by the elector was to issue an order in Council declaring that the Act was to be in force in that area. The order in Council was not to be revoked for three years & only in the manner laid down above. It was contended that this amounted to delegated legislation. Sir Montague E. Smith observed as follows:

‘It was in the first place contended, though not very strongly relied on, by the Appellant's counsel, that assuming the Parliament of Canada had authority to pass a law for prohibiting A regulating the sale of intoxicating liquors, it could not delegate its powers, & that it had done so by delegating the power to bring into force the prohibitory & penal provisions of the Act to a majority of the electors of counties & cities. The short answer to this objection is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer on these persons power to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition (wing fulfilled. Conditional legislation of this kind is in many cases convenient, & is certainly not unusual, & the power so to legislate cannot be denied to the Parliament of Canada, when the subject of legislation is within its competency. Their Lordships entirely agree with the opinion of Chief Justice Ritchie on this objection. If authority on the point were necessary, it will be found in the case of the Queen v. Burah, (1878) 3 A.C 889, lately before this Board.’

77. In Hodge v. The Queen, (1883) 9 A.C 117, which was an appeal from a decision of the Court of Appeal for Ontario, the appellant Hodge, proprietor of a tavern, was summoned before the Police Magistrate of Toronto for a breach of the Resolutions of the License Commissioners of Toronto & was convicted on evidence sufficient to sustain the conviction if the Magistrate had in law Authority to make it. The Court of the Queens Bench for Ontario quashed the conviction by a unanimous judgment delivered by Hagarty C.J The question of the validity of the Liquor License Act—Revised Statutes of Ontario, c. 181 — was not considered, but assuming that the legislature had power to legislate on the subject, it was held that they could not devolve or delegate these powers to the discretion of the Local Board of Commissioners. The Court of Appeal for Ontario reversed the decision & affirmed the conviction. Hodge appealed to the Judicial Committee.

78. Their Lordships quote the Liquor License Act in which there was provision for appointing License Commissioners (S. 8) & for the passing of resolutions by the License Commissioners (S. 4) & for imposing penalties for the infraction thereof (S. 5). S. 43 provided for the closing of taverns from 7 p.m on Saturday till 6 p.m on Monday. & Ss. 62 & 70 provided that the penalty imposed by a resolution of the Commissioners shall be enforced by a Magistrate.

79. License Commissioners were duly appointed and they prohibited the use of Billiard table etc., during the hours above mentioned & in their resolutions provided a penalty of fine in case of violation of the condition. Hodge was prosecuted for infraction of the conditions.

80. It was contended that the impugned Act was ultra vires in its 4th & 5th sections. The argument was twofold. The second argument was based on the maxim delegata potestas non potest dilegare. Their Lordships rejected this argument as unsound, observing:

“It appears to their Lordships, however, that the objection thus raised by the appellants is founded on an entire misconception of the true character & position of the provincial legislatures. They are in no sense delegates of or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a legislature for Ontario, & that its legislative assembly should have exclusive authority to make laws for the Province & for provincial purposes in relation to the matters enumerated in S. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary & as ample within the limits prescribed by S. 92 as the Imperial Parliament in the plenitude of its power possessed & could bestow. Within these limits of subjects & area the local legislature is supreme, & has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, & with the object of carrying the enactment into operation & effect.

It is obvious that such an authority is ancillary to legislation, & without it an attempt to provide for varying details & machinery to carry them out might become oppressive, or absolutely fail. The very full & very elaborate judgment of the Court of Appeal contains abundance of precedents for this legislation, entrusting a limited discretionary authority to others, & has many illustrations of its necessity & convenience.”

81. It was argued that a legislature committing important regulations to agents or delegates effaces itself. Their Lordships observed:

“That is not so. It retains its powers intact, & can whenever it pleases, destroy the agency it has created & set up another, or take the matter directly into his (sic) own hands. How far it shall seek the aid of subordinate agencies, & bow long it shall continue them, are matters for each legislature, & not for Courts of law, to decide.”

82. Powell v. Apollo Candle Co., (1885) 10 A.C 282, merely reaffirms the dicta in Queen v. Burah & Hodge v. Queen, (op. cit) and need not be noticed separately. The latest case of the Judicial Committee is King Emperor v. Benoari Lal Sarma, 72 I.A 57. The question there was whether the Special Criminal Courts Ordinance (11 of 1942) was not ultra vires the Governor-General inasmuch as S. 1(3) thereof amounted to delegated legislation.

83. S. 1(3) of Ordinance II of 1942 provided that Ordinance

“shall come into force in any Province only if the Provincial Govt. being satisfied of the existence of an emergency arising from any disorder within the Province or from a hostile attack on India or on a country neigh-inuring on India or from the imminence of such an attack, by notification in the official Gazette, declares it to be in force in the Province, & shall cease to be in force when such notification is rescinded,

(Underlining (here italicized) is by me.)

84. The Federal Court held this provision to be a piece of delegated legislation, & the opinion of the Federal Court was pressed upon their Lordships for acceptance. Their Lordships did not agree with the Federal Court. They observed:

“The second objection has attracted more support, but is, in their Lordships opinion, equally unfounded. It is undoubtedly true that the Governor-General, acting Under S. 72 of Sch. IX. must himself discharge the duty of legislation there cast on him, & cannot transfer to it other authorities. But the Governor-General has not delegated his legislative powers at all. His powers in this respect, in cases of emergency, are as wide as the powers of the Indian legislature which, as already pointed out. In view of the proclamation & S. 102, had power to make taws for a Province even in respect of matters which would otherwise be reserved to the Provincial legislature. Their Lordships are unable to see that there was any valid objection, in point of legality, to the Governor-General's ordinance taking the form that the actual betting up of a special Court under the terms of the ordinance should take place at the time & within the limits judged to be necessary by the Provincial Govt. specially concerned. This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is determined by the judgment of a local administrative body as to its necessity.”

(Underlining (here italicized) is by me.)

85. Their Lordships then cite Charles Russell v. The Queen, (1882) 7 A.C 829, to which I have already referred, & it is interesting that in both these cases the machinery for bringing the Act into force was also the machinery for putting an and to it.

86. These cases are the leading pronouncements of the Judicial Committee, & I shall refer only to two more cases of the Privy Council later. But, before I do so I wish to refer to two Australian & one Canadian case.

87. In Baxter v. Ah Way, (1909) 8 C.L.R 626, there was a provision in the Commonwealth Customs Act establishing a category of ‘prohibited imports’ & “imposing a penalty on importation. The section set out a list but also included ‘all goods the importation of which may be prohibited by proclamation.’ A proclamation prohibiting the importation of ‘opium’ was made. The High Court of Australia sustained the proclamation. Isaacs, J. said:

“The Governor General does not legislate, using the word in the true sense. There is no subject handed over to him to legislate upon as he pleases without any substantial provision as to consequences by the Parliament itself.”

88. This case has been criticized on the ground that no direction or guide is given to the executive & that the power is unqualified. But, in my opinion, it is merely a delegation of a discretion which the Governor-General could be trusted to exercise to the advancement of the objects of the Act.

89. In a later case in Australia Victorian Stevedoring and General Contract Co. v. Dignan, (1931) 46 C.L.R 73 Dixon, J. in an illuminating judgment examined a large number of American, English, & colonial precedents. The decision of the High Court was that Section 3 of the Transport Workers Act, 1928–1929, which purported to confer a power upon the Governor-General of making regulations not inconsistent with that Act with respect to the employment of transport workers, & in particular for regulating the engagement, service & discharge of such workers & for other ancillary matters, was within the competence of commonwealth Parliament. The case of Boche v. Kronheimer, (1921) 29 C.L.R 329 was followed.

90. In Canada too in Re Natural Product Marketing (Br. Columbia) Act, (1937) 4 D.L.R 298 (Canada) it was held that a power conferred on the Lieutenant-Governor in Council to establish marketing schemes & boards & to vest in the boards certain powers, was not an illegal delegation of legislative powers. The British Columbia Act was not treated as a ‘skeleton’ measure, but it was found that there was a ‘purpose & intent’ & what was conferred was a regulatory power in furtherance of the ‘purpose & intent’ of that Act. Similar was the decision in Reference as to the validity of the Regulations in relation to Chemicals, (1943) S.C.R 1.

91. In Shannon v. Lower Mainland Dairy Products Board, 1938 A.C 708 the earlier Canadian case came up for consideration before their Lordships, & Lord Atkin observed as follows:

‘The third objection is that it is not within the powers of the Provincial Legislature to delegate so called legislative powers to the Lieutenant Governor in Council, or to give him powers of further delegation. This objection appears to their Lordships subversive of the right which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects to relation to which the constitution has granted legislative powers. Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament; & it is unnecessary to try to enumerate the innumerable occasions on which Legislatures, Provincial, Dominion & Imperial, have entrusted various persons & bodies with similar powers to those contained in this Act. Martin, C.J appears to have disposed of this objection very satisfactorily in his judgment on the reference, & their Lordships find no occasion to add to what he there said.’

92. It may be mentioned that even in Africa, though the Acts of Provincial Councils can be overridden by a Union Statute, it has been recognized that such legislatures are not delegates of the Union Parliament. In Middelburg Municipality v. Gertzen, (1914) A.D 544 at p. 551 Innes, C.J said:

‘Restricted though the authority of our Councils may be, it is an original authority drawn from the South Africa Act, & not delegated by the Union legislature. The constitutional position thus created is, in some respects, unique; but I entertain no doubt that a provincial council is a deliberative legislative body, & that its ordinances duly passed & assented to must be classed under the category of Statutes, & not of mere bye-laws or regulations. They have full force of law within the province, so long as they are not repugnant to an act of the Union Parliament. Indeed, if it were otherwise, the Council would have no right to repeal or even to amend laws passed prior to Union; & the powers conferred upon it by S. 85, extensive though they purport to be would be largely nugatory.’

93. The same is the view of Bristowe, J. in Williams v. Johannesburg Municipality, (1915) T.P.D 106.

94. Now I propose to deal with the second limitation which arises from the instrument or grant by which the legislature is brought into existence. The leading case of the Judicial Committee on that subject is In re the Initiative and Referendum Act, (1919) A.C 935. By an Order in Council the following questions were referred by the Lieutenant Governor in Council to the Court of King's Bench of Manitoba:

‘(1) Had the Legislative Assembly jurisdiction to enact the Initiative & Referendum Act, &, if not, in what particular or respect has it exceeded its powers?

(2) Had the Legislative Assembly jurisdiction to enact Ss. 3, 4, 4A, 7, 8, 11, 12, 17 (Sub s. 1), of the Said Act or any of them, &, if so, which of them?’

95. The Act referred to in the questions was 6 Geo. v., c. 59 of the Legislative Assembly of the Legislative Assembly of Manitoba, & provided that laws might be made or repealed by the direct vote of electors of the province at large.

96. Their Lordships first discuss the Constitutions of Canada & the Provinces and point out that the appointment of a Provincial Governor was made under the Great Seal of Canada, & therefore, really by the Executive Govt. of the Dominion, which was in the Sovereign. The Lieutenant-Governor of Manitoba as thus a representative of His Majesty, & subject to certain considerations, each Province was to retain its independence & autonomy but was to be directly under the Crown as its head. The legislature within the limits of area & subjects were supreme so long as the Imperial Parliament did not repeal the British North America Act, 1867, & had such powers as the Imperial Parliament possessed ‘in the plenitude of its own freedom.’

97. Their Lordships then analyse the constitution of the legislatures, namely, the Dominion Parliament as well as the Provincial Legislatures, & the distribution of legislative power, between the Dominion Parliament & the Provincial Legislatures & state that the residuary power of legislation was conferred on the Dominion Parliament. They comment in passing:

“Had the Provinces possessed the residuary capacity, as is the case with the States under the Constitutions of the United States & Australia, this might have affected the question of the power of their Legislatures to set up new legislative bodies. But it is not so…”

98. Their Lordships then deal with S. 92 & observe:

‘That section commences by enacting that “in such Province the Legislature may exclusively make laws in relation to matters” coming within certain classes of subject. The only one of these classes which is relevant for the present purpose is the first enumerated, “the amendment from time to time, notwithstanding any thing in this Act, of the Constitution of the Province, excepting as regards the office of Lieutenant-Governor.”

99. The references their Lordships have already made to the character of the Office of Lieutenant Governor, & to his position as directly representing the sovereign in the province, render natural the exclusion of his office from the power conferred on the Provincial Legislature to amend the Constitution of the Province.’

100. Their Lordships then state that when the Lieutenant-Governor gave to or withheld this assent from a Bill, it was in contemplation of law the Sovereign which did so, & the Lieutenant-Governor also represented the Sovereign & was a part of the Legislature.

101. Their Lordships then observe that the language of the Initiative & Referendum Act affected seriously the position of the Lieutenant-Governor as an integral part of the Legislature & give the following reasons:

‘For if the Act is valid it compels him to submit a proposed law to a body of voters totally different from the Legislature of which he is the conventional head & renders him powerless to prevent it from becoming an actual law if approved by a majority of the voters… S. 11, Initiative & Referendum Act is not less difficult to reconcile with the rights of the Lieutenant-Governor. It provides that when a proposal for repeal of some law has been approved by the majority of the electors voting, that law is automatically to be deemed repealed at the end of thirty days after the clerk of the Executive Council shall have published in the Manitoba Gazette a statement of the result of the vote. Thus the Lieutenant-Governor, appears to be wholly excluded from the new legislative authority.’

102. Their Lordships then observe that the offending provisions were so interwoven into the scheme of the impugned Act that they were not severable. In answer to the argument of delegated legislation their Lordships made a weighty pronouncement, which is of great value in the consideration of Jatindranath's case. It is as follows:

‘S. 92 of the Act of 1867 entrusts the legislative power in a Province to its Legislature, & to that Legislature only. No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of sub-ordinate agencies, as had been done when in Architbald G. Hodge v. Reg., (1884) 9 A.C 117, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that if can create & endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise.’

103. It is obvious, as observed by Professor Keith (Imperial Unity & the Dominions (1916), pp. 124-127) that any legislation which intends to deprive a deliberative assembly of the power of exercising its own essential functions can never be upheld by Courts. In Alberta & Saskatchewan much ingenuity was spent to give a legislative colouring to such measures. In the Manitoba Act the permitting of the repeal of the Act automatically on a referendum was clearly open to the charge that the Legislature had deprived the Governor & the Governor General of their control of legislation under the Constitution.

104. This brings me to the end of the analysis of precedents on which I rely. I shall now state in brief the conclusions to be drawn from this long digression before reverting to the examination of Jatindranath's case.

105. In England Parliament is omnipotent, & barring certain constitutional checks including the position of the Crown & the creation of a parallel body in negation of its omnipotence, Parliament can do anything. Delegated legislation is frequently employed to supplement Parliamentary legislation, & the power to put into operation an Act or to terminate the operation of an Act is regarded as a part of legislative machinery.

106. In America, the Legislatures are themselves delegates of the people, & the legislative power is delegated to them to be exercised exclusively by them. Delegated legislation is permissible only if the entire legislative will has been exercised & the delegated legislation is based ‘upon some condition, contingency, exigency or state of facts,’ which the legislature declares must be determined by some outside agency. A number of ‘vague criteria’ has been devised, but where the conditions have been clearly stated by the legislature itself, delegated legislation can also embrace the fixing of the ‘appointed day’ by an outside agency.

107. In the case of the colonial legislatures, it is clear that they are not mere delegates & the power to make laws is extensive. Such legislatures have been erected in its own image by the Imperial Parliament. But the power to make laws is vested in a designated authority & whatever claims obedience as law must show that it is made by that authority. These legislative bodies cannot confer a concurrent legislative power on any one or more parts of the legislature or on an outside authority & abdicate in favour of the new legislative machinery. A mere power of repeal reserved by the legislature would not be a sufficient answer when it is found that the legislature has in effect abolished Itself & conferred its powers on another body in substitution of itself.

108. As was observed by Anglin, J. (later, C.J) an Gray's case, (1918) 42 D.L.R 1 at p. 16.

‘A complete abdication by Parliament of its legislative functions is something so inconceivable that the constitutionality of an attempt to do anything of the kind need not be considered. Short of such an abdication, any limited delegation would seem to be within the ambit of a legislative jurisdiction certainly as wide as that of which it has been said by incontrovertible authority that it is “as plenary & as a triple … as the Imperial Parliament in the plenitude of its powers possessed & could bestow”.’

109. See the instances of delegated legislation collected by Professor Kennedy in his treatise on the ‘Constitution of Canada etc.’

110. I have already referred to the legislative powers of the Provincial Legislatures, & the Governor under the Govt. of India Act, 1935 in relation to the Provinces & also to the excluded & partially excluded areas. I shall now give briefly the facts of Jatindranath's case.

111. In that case the main consideration was the continued existence of the Bihar Maintenance of Public Order Act, 1947 (hereinafter called the Bihar Act) in Bihar as well as the Chhota Nagpur Division when the applicants were detained under the Bihar Act on 23-2-1949. The Bihar Act came into force on 16-3-1947. Sub-s. (3) of Section I of the Bihar Act, provided that the Act was to remain in force for a period of one year from the date of its commencement, that is to say, till 15-3-1948. There was, however, a proviso in the following terms:

‘Provided that the Provincial Govt. may, by notification, on a resolution passed by the Bibar Legislative Assembly & agreed to by the Bihar Legislative Council, 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.’

112. On 16-3-1947 the Governor of Bihar issued a notification under Section 92(1) of the Govt. of India Act, 1935, applying the Bihar Act to the Chhota Nagpur Division & the Santhal Pargana Districts with (which were excluded or partially excluded areas). The Resolution of the Legislative Assembly & Council having taken place by 11-3-1948, the Provincial Govt. issued a notification extending the Act from 16-3-1948 to 15-3-1949. No amendments were, however, made.

113. The Governor did not notify afresh the Bihar Act for purpose of the excluded or partially excluded areas, till after the arrest of the petitioners among whom was Jatindranath. On 7-3-1949 the Governor issued a notification under Section 92(1) of the Constitution Act, 1935, directing that the Act ‘shall apply & shall always be deemed to have applied to the Chhota Nagpur Division & the Santhal Pargana District with effect from 16-3-1948’.

114. On 15-3-1948 Bihar, Act V[5] of 1949 was passed. This new Act provided inter alia:

‘Whereas it is expedient to amend the Bihar Maintenance of Public Order Act, 1947, in the manner hereinafter appearing, it is hereby enacted as follows:

(2) in Sub-Section (3) of Section 1 of the Bihar Maintenance of Publia Order Act, 1947, for the words, “for a period of one year from the date of its commencement” the words & figures “till 31-3-1950” shall be substituted.’

115. On the passing of the last Act, the Governor on 18-3-1949 issued a notification under Section 92(1) of the Constitution Act, 1935 (as adapted by the India (provisional constitution) Order 1947), that the Bihar Act (V[5] of 1949) shall apply to the Chhota Nagpur Division & the Santhal Parganas District.

116. The Federal Court held (Fazl Ali J., dissenting) that the proviso to sub-s. (3) of section 1 of the Bihar Act was ultra vires and that it amounted to delegated legislation. It was further held that the Act which was a temporary Act ceased to be law on 16-3-1948 & as it was not re-enacted the Governor had no power to adopt it to Chhota Nagpur Division as there was nothing to adopt on 7-3-1949 & even on 15-3-1949 when the Bihar Act (V[5] of 1949) was passed, the amendment could not take effect as the Bihar Act had expired on 16-3-1918 and its life had not been properly extended in the meantime & there was thus nothing which Act V[5] of 1949 could amend.

117. The reasons given by their Lordships were slightly different. Reliance before us was, however, placed on certain observations of Kania, C.J, with whom Mahajan & Mukherjea, JJ. substantially agreed. I shall not take up the actual decision in the case—bearing in mind Quinn v. Leatham, (1901) A.C 495 & the reasons for the decision.

118. In dealing with the opinion of their Lordships, I shall take up first the opinion of Patanjali Sastry, J. as that learned Judge decided the case on a narrow ground. His Lordship did not address himself to the question whether or not it was competent for the Provincial Legislature to enact the proviso. He held that the Governor acting under S. 92(1) had no power to apply the proviso to excluded & partially excluded areas. The legislative power under that section could only be exercised by the Governor whose personal discretion & judgment are an important factor in its exercise. By applying the proviso the Governor divested himself in effect of this personal responsibility & delegated it in advance to that very legislature which had no jurisdiction in that area, & this amounted to his own abdication.

119. His Lordship also held that if the proviso could not be properly applied, the result was that the Bihar Act came to an end on 15-3-1948 in the excluded areas & the application of the Amending Act (V[5] of 1949) to the excluded areas by the third notification could not revive the Bihar Act there, & that the notification of 7-3-1948, which was to operate retrospectively, was beyond the powers of the Governor.

120. Kania, C.J held to begin with on the authority of Chatturam's case, (op cit sup.) & on the concession of counsel that the power exercised by the Governor under the first sub-s of Section 92 of the Constitution Act, 1935, was a legislative power. The learned Chief Justice then held that the proviso which allowed extension with modifications, if any, endowed one power & not two severable powers. The learned Chief Justice stated that even if no amendments were made, the proviso was still incompetent.

121. The learned Chief Justice further observed:

‘The power to extend the operation of the Act beyond the period mentioned in the Act, prima facie is a legislative power. It is for the Legislature to state how long a particular legislation will be in operation. That cannot be left to the discretion of some other body. The power to modify an Act of a Legislature, without any limitation on the extent of the power of modification is undoubtedly a legislative power. It is not a power confined subject to any restriction, limitation or proviso (which is the same as an exception) only. It seems to me, therefore, that the power contained in the proviso is legislative

(Underlining (here italicised) is by me.)

122. This observation was made treating the proviso as conferring one power and not two severable powers. In other words, the learned Chief Justice is speaking of the power to extend the Bihar Act with modifications, when the Bihar Act itself peremptorily said in an earlier part that the Bihar Act was to remain in force for a year. The learned Chief Justice goes on to observe as follows:

‘Even keeping apart the power to modify the Act, I am unable to construe the proviso, worded as it is, as conditional legislation by the Provincial Govt. S. 1(3) & the proviso read together cannot be properly interpreted to mean that the Govt. of Bihar in the performance of its legislative functions had prescribed the life of the Act beyond one year. For its continued existence beyond the period of one year it had not exercised its volition or judgment but left the same to another authority which was not the legislative authority of the Province. The proviso is framed in the affirmative form, stating that it shall be extended for a period of one year by the Provincial Govt. on a resolution passed by the two Chambers,’

(Underlining (here italicised) is by me).

123. The learned Chief Justice expressed the opinion that this could not be done because this amounted to creating a different legislative body which could dispense with the consent of the Governor of the Province. This will appear to follow directly from the observations in Queen v. Burah, 5 I.A 178, viz.

‘Their Lordships agree that the Governor-General in Council could not, by any form of enactment, create in India, & arm with general legislative authority a new legislative power, not created of authorized by the Councils Act;’

124. Or observations in Emperor v. Benoarilal Sarma, 72 I.A 57 viz:

‘It is undoubtedly true that the Governor-General, acting under S. 72 of Sch. IX must himself discharge the duty of legislation there cast on him, & cannot transfer it to other authorities;’

125. Or the decision in the Initiative & Referundum Act case, where their Lordships pointed out that the Lieutenant Governor was an integral part of the Legislature of Manitoba & that in the scheme of that Act the Lieutenant Governor appeared to be wholly excluded from the new legislative authority. The learned Chief Justice in addition appears to have taken the same view as Sastri, J. regarding the legislative powers of the Governor acting under S. 92(1) & the futility of Act V[5] of 1949.

126. Pausing here for a while, I must point out that the first observations must be taken in the context of the power given to the Provincial Govt. to make amendments in the Bihar Act itself while extending its life. Since, the learned Chief Justice himself observes that the power given there is one power A not two powers, we cannot view the matter differently. Further, the main ground of the learned Chief Justice was that the Bihar Act had laid down that it was to remain in force for one year. Ordinarily, with such a clear determination of the life of an Act by the Legislature, the Legislature alone could extend that Act. Under the proviso the power to extend the Bihar Act was not exercisable by the Bihar Legislature by the usual legislation, but by another body which was not the Bihar Legislature. The reasoning of the learned Chief Justice turned upon the following facts:

(a) that the life of the Bihar Act was fixed as one year by the Legislature;

(b) that the extension beyond that period was a legislative act which the Legislature alone could undertake as it involved amending the peremptory determination of its life in the opening words of sub-s. (3) of S. 1;

(c) that the Provincial Govt. was not only given a power of extension but also of modification, the emphasis being on modification; &

(d) that the machinery provided in the proviso set up a parallel legislature & rendered the Governor's functions nugatory.

127. In addition there was the defect in applying the proviso to excluded & partially excluded areas to which it could not be applied by the Governor in the proper performance of his duties under Section 92(1) of the Constitution Act, 1933.

128. All this also becomes clear when we examine the line of reasoning adopted by Mahajan & Mukherjea, JJ. Mahajan, J. begins by noting that Section 92 of the Constitution Act, 1935, in terms deprives the Provincial Legislature of its plenary powers of legislation & confers the power thus abstracted on the Governor. The powers of the Governor both under the first & second sub-sections of S. 92 are legislative in character. His Lordship then quotes from Emperor v. Benoarilal Sarma, 72 I.A 57 & concludes that no legislative authority can transfer to others the essential legislative functions with which it is invested. His Lordship then distinguishes between ‘conditional’ & ‘delegated’ legislation, & observes that

129. ‘in cases of delegated legislation, the delegate has to take a decision whether the legislation is to continue or has to be modified, amended or varied.’

130. Judged from this test Mahajan, J. holds that the proviso involved all this & was thus improper & void, as it set up a parallel Legislature in Bihar. The emphasis is again placed upon the power of making modifications, which power cannot amount ‘to an act of execution of a power already conferred by the statute’. His Lordship also points out the correct legislative machinery in the Constitution Act, 1935, laying emphasis on the normal mode of a Bill passed by the two Chambers & assented to by the Governor. His Lordship, therefore, concludes:

‘I am further of the opinion that the power given to extend the life of the Act for another year in the context of the language of S. 1(3) also amounts to an Act of Legislation & does not fall under the rule laid down in The Queen v. Burah.

(Underlining (here italicized) is by me).

131. Now it is interesting to find that while the learned Chief Justice relied upon Queen v. Burah, for his own statement of the law Mahajan, J. felt that the case before him fell outside the rule. This seeming anomaly is easily settled because while Kania, C.J is thinking in terms of the entire ruling, particularly the passage which I have emphasized in Para. 64 above, Mahajan, J. is considering the actual decision in that case.

132. Mahajan, J. distinguishes Emperor v. Benoarilal Sarma, 72 I.A 57 and Russell v. The Queen, (1882) 7 A.C 829 along the same lines, and of the former case His Lordship said:

‘In the present case, however, the power conferred is much larger than that & authorises the Provincial Govt. to modify the Act & also to re-enact it. This kind of proviso does not fall under the rule of conditional legislative authority.’

133. Mukherjea, J. who agreed with the learned Chief Justice, delivered a separate judgment. His Lordship begins by laying down the principles on which delegation of legislation is either allowed or disallowed. His Lordship observes as follows:

‘Now it is one of the settled maxims of constitutional law that the power conferred on legislative authority to make laws cannot be delegated by it to any other body or department. The authority must remain where it is located & the power to which the prerogative has been entrusted cannot relieve itself from the responsibility by choosing other organs upon which it shall be devolved. (Vide Cooley's Constitutional Limitations, Edn. 8 Vol 1, p. 227). There are certain well recognised exceptions, more apparent than real, which have been engrafted upon this maxim. Thus the legislation itself may be conditional & not absolute & its taking effect may be made to depend upon determination of facts & conditions by an outside authority…. The legislature, it is true, cannot delegate its power to make law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. (Vide Locke's Appeal 13 Am. Rep. 716). The inhibition against delegation does not also preclude the Legislature from delegating any power not legislative which it could itself rightfully exercise.’

134. His Lordships then considers the proviso & notices that while it is open to the legislature to leave ‘the time & manner of carrying the law into effect’ to an outside agency it is not open to any Legislature to create a new Legislature & endow it with legislative capacity. His Lordship then holds that what the proviso delegates is not a mere non-legislative function & observes:

‘The duration of a statute is a matter for determination by the Legislature itself. From the language of Sub-s. (3) of S. 1 & that of the proviso, it is difficult to say that the legislature fixed the duration of the Act at two years from the date of the commencement & left it to the Provincial Govt. to determine at the end of one year in consultation with the two Houses of the Bihar Legislature whether the Act should be in operation for one year more. If that was the real intention of the Legislature, it might have been argued that it was a piece of conditional,’ legislation only

(Underlining (here italicised) by me).

135. Why such an intention could not be gathered is the most important element in the decision & His Lordship goes on to say:

“That this was not the intention of the Legislature is, however, clear from the fact that the Provincial Govt. is authorised to decide at the end of the year not merely whether the Act should be continued for another year but whether the Act itself should be modified in any way or not. To modify a statute is certainly to per form a legislative act. No restrictions have been laid down regarding the nature of the modifications that could be made…. The language of the proviso clearly indicates that modification & extension of the period of the statute are inter-related & are treated as integral parts of one & the same Act; the authority which is to determine whether the statute is to be extended or not is to consider at the same time whether the provisions are to be kept intact or modified. Whether modification is actually made or not is perfectly immaterial & the mentioning of the two things together makes it clear that what the Legislature wanted to delegate to the Provincial Govt. was legislative & not administrative powers.’

(Underlining (here italicised) is by me).

136. In this opinion also the emphasis was laid on the power to amend the Bihar Act. The observations which have been made cannot be extended to a piece of legislation in which the legislature has determined everything but has made the operation of the law to depend on conditions to be ascertained by an outside agency.

137. To sum up, therefore, the case is not an authority for the proposition that in no case can a piece of legislation be made which is to run its course only during such time as an outside agency named by the legislature itself is to determine. It is only an authority for the proposition that in no case can a legislature endow another body with its own legislative functions, the other body in the cited case being the two Chambers without the Governor & the essential legislative function being the amendment of the Bihar Act & the determination of the duration of its operation contrary to the period of one year fixed by legislature itself. It is also an authority for the fact that the Governor must under Section 92 of the Constitution Act, 1935, himself determine which law should be in force & how long in the excluded & partially excluded areas. With other matters we are not concerned.

138. I am aware that the interpretation placed by my brother Mudholkar, J. has been accepted by some other Courts in India, but the matter was not approached in the way it should have been. I need not refer to those cases. In my judgment, & I say it most respectfully, the learned Judges in those cases have torn the observations of their Lordships from the context & the facts & applied them to other enactments not entirely in pari materia. I am also clear that the interpretation of the Federal Court of the decisions of the Judicial Committee is binding on me. But I do not view the decision of the Federal Court as laying down any law contrary to the current of the pronouncements of the Judicial Committee. It is not open to me to depart from any principle laid down by the Federal Court, but it is open to me ‘to examine the facts on which that decision rested & to discover how far the principle on which stress is laid applies to the facts’ of the case I am dealing with.

139. I have stated earlier in this opinion that the facts in this case are distinguishable from those in Jatindranath's case. I now give my reasons. The omnipotence of the Governor to enact laws, within the powers assigned to him, cannot be questioned any more than the powers of the Provincial Legislature. That the Governor could by his ordinance amend the laws enacted by the Provincial Legislature is conceded at the Bar. All that the Governor has done is to enact that in place of the period of one year the Act shall now run so long as the Provincial Govt. may appoint. The Governor has not abdicated his powers. The Act is still a temporary Act, but rather than fix the duration thereof at one year, the Governor exercising his own volition has left, the ‘appointed day’ for its termination to the Provincial Govt. Just as ‘the appointed date’ for bringing the statute into operation can be left to the executive a power which so far as I am aware has not been questioned by the Privy Council or the Federal Court—the power to terminate the statute can be left to the executive provided there is not coupled with it any legislative discretion. This has been done in England, in the Colonies, in America, & in India times out of number. In all such cases the legislative will is exercised by the legislature, & the only thing left to the executive to determine is when to bring the legislation into operation. It is a subject connected with ‘the time & the manner’, & the act of the executive is ‘directly & immediately under & by virtue of the Act.’

140. It has never been doubted that in such cases there has been an exercise of judgment & discretion by the legislature itself, & just as the making of rules & regulations incidental to actual legislation to supplement & complete it can be left to some other authority, the fixation of time and place at which it shall come into operation or cease can also be left to another authority provided no actual powers of legislation are granted simultaneously as was done in Jatindranath's case.

141. In the words of Duff, J. (later C.J.C) in Gray's case, (1918) 42 D.L.R 1.

“There is no attempt to substitute the executive for parliament in the sense of disturbing the existing balance of constitutional authority by aggrandizing the prerogative at the expense of the legislature. The powers granted could at any time be revoked & anything done under them nullified by parliament, which parliament did not, & for that matter could not, abandon any of its own legislative jurisdiction.’

142. In my judgment the Ordinance of the Governor & Act XXXIX[39] of 1947 were valid.

143. It remains only to add that if I had held that the Ordinance was ultra vires I would have also held that the Act expired on 30-9-1947. In the view I have taken of the matter, I need not have discussed this, but as a question of some constitutional importance is involved I feel compelled to give my reasons.

144. The original section read:

“It shall come into force on 1-10-1946 & shall remain in operation for a period of one year.’

145. The underlined (here italicised) words alone were amended. If the amendment is unconstitutional we must leave it completely out. We cannot use the intention underlying that amendment to take the place of enactment. We cannot read the legislative act of the Governor as involving a repeal & a reenactment & give effect to the repeal though not the enactment. To do that would leave the original section truncated, & besides, there is no authority to give effect to a mere legislative intent or purpose. As Lord Watson said in Salomon v. Salomon Co., (1897) A.C 22 at p. 38:

“‘Intention of the legislature’ is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodies in a positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a Court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable or necessary implication.”

146. Further this intention & meaning though it is to be gathered from all that the legislature has said including that which is ineffective for want of power, can only be so gathered when the valid & invalid portions are passed together. When the amendment comes later & is unconstitutional it has no effect whatever.

147. This proposition, which to my mind is clear enough, receives support from high authority in America. In Davis v. Wallace, 257 U.S 485, it was held that “an existing statute cannot be recalled or restricted by anything short of a constitutional enactment.” Again in Truax v. Corrigan, 257 U.S 312 at pp. 341, 342 it was held that where an amendment was declared invalid & unconstitutional, the amendment could not be given the effect of repealing it. See also Waters Pierce Oil Co. v. Texas, (1900) 177 U.S 28 at p. 47.

148. In Frost v. Corporation Commissioners, 278 U.S 505 Sutherland, J. observed:

“Here it is conceded that the statute, before the amendment, was entirely valid. When passed, it expressed the will of the legislature which enacted it. Without an express repeal, a different legislature undertook to create an exception, but, since that body sought to express its will by an amendment, which being unconstitutional, is a nullity & therefore, powerless to work any change in the existing statute, that statute must stand as the only valid expression of the legislative intent.”

149. Sutherland, J. goes on to say:

“The question is not affected by the fact that the amendment was accomplished by inserting the proviso in the body of the original section & re-enacting the whole at length.”

150. This last observation will apply the amending Act.

151. In the Michigan Court, Cooley, J. said in Campan v. Detroit, 14 Mich. 276 at p. 286:

“But nothing can come in conflict with a nullity, & nothing is therefore, repealed by this Act on the ground solely of its being inconsistent with a section of this law which is entirely unconstitutional & void.”

152. In Carr v. State, 22 Am. St. Rep. 624 the Supreme Court observed as follows:

“We suppose it clear that no law can be changed or repealed by a subsequent Act which is void.……. An Act which violates the Constitution has no power, & can, of course, neither build up nor tear down. It can neither create rights nor destroy existing ones. It is a empty legislative declaration without force or vitality.”

153. Thus, the amending ordinance would fail to achieve its purpose completely if the proposed amendment was beyond the competence of the Governor & must be ignored.

154. As a result the Act would have expired at the end of one year from 1-10-1946. The Amending Act (XXXIX(89) of 1947) was passed in November 1947, & the assent of the Governor-General, which was given on 14-11-1947, was published in the Central Provinces & Berar Gazette Extraordinary on 17-11-1947. By that time the Act had expired & there was nothing to amend. This result is reached on Jatindranath's case. There also the Amending Bihar Act V[5] of 1949 was not given effect to because it has come too late.

155. However, in the view I have taken of that case the question does not arise.

156. It was faintly argued that the rules made under the authority of the Act are ultra vires as they give unchartered power to the Provincial Govt. The limits within which such rules or orders can be made have been fixed & determined. To quote again from Duff, J.:

“The true view of the effect of this type of legislation is that subordinate body in which the law-making authority is vested by it is intended to act as the agent or organ of the Legislature & that the acts of the agent take effect by virtue of the antecedent legislative declaration (express or implied) that they shall have the force of law. Maitland's Constitutional History, pp. 1, 15, et seq.”

157. For the reasons I am of opinion that the application be dismissed with costs.

Mangalmurti, J.:— I have had the advantage of reading the opinions which my learned brothers Hidayatullah & Mudholkar, JJ. propose to deliver. We are unanimous that the application must be dismissed. I agree with all the conclusions of my learned brother Hidayatullah, J. & reasons therefor & do not propose to record a separate opinion.

Mudholkar, J.:— This is a petition under Article 226 of the Constitution in which the applicant, who is the landlord of the house of which non-applicant 4 is the tenant, has challenged the validity of the order passed by non-applicant 2, the Deputy Commissioner, Akola, reducing the rent of the house from Rs. 100 per month, which was the contract rate, to Rs. 40 per month. The order was passed by the Deputy Commissioner in appeal in exercise of the powers conferred on him by cl. (6) of the Central Provinces & Berar Letting of Houses and Bent Control Order, 1949 read with cl. (21) thereof. The Bent Control Order was promulgated under cl. (2) of the Central Provinces & Berar Begulation of Letting of Accommodation Act, XI(11) of 1946.

158. The first ground on which the order of the Deputy Commissioner is challenged is that long before the date on which it was passed, the Central Provinces & Berar Regulation of Letting of Accommodation Act had itself expired, with the result that on the day on which the State Govt. promulgated the Rent Control Order, it had no power so to do & consequently the Deputy Commissioner could not interfere with the contract entered into between the applicant & non-applicant 4.

159. It is no doubt true that the Regulation of Letting of Accommodation Act, which came into force on 1-10-1946, was, by virtue of the provisions of sub-s. (3) of S. 1 thereof, to remain in operation for a period of one year only. This provision, however, was amended by Ordinance No. IV of 1947 promulgated on 30-9-1947 published in a Gazette Extraordinary on the same day. Cl. 2 of the Ordinance runs thus:

“In Sub-Section (3) of Section 1 of the Central Provinces & Berar Regulation of Letting of Accommodation Act, 1946, for the words ‘remain in operation for a period of one year’ the words ‘cease to operate on such date as the Provincial Govt. may by notification appoint in this behalf’ shall be substituted.”

160. It may be mentioned that on the date on which the Ordinance was passed, the Legislature was not in session & therefore the Governor had to resort to his power under Section 88 of the Government of India Act, 1935, & make the Ordinance. This Ordinance was eventually superseded by the Central Provinces & Berar Regulation of Letting of Accommodation (Extending) Act, 1947, which received the assent of the Governor-General on 14-11-1947. S. 2 of that Act provides as follows:

“For sub-Section (3) of Section 1 of the Central Provinces & Berar Regulation of Letting of Accommodation Act, 1946 (XI[11] of 1946), as amended by the Central Provinces & Berar Regulation of Letting of Accommodation (Extending) Ordinance, 1947 (IV[4] of 1947) (hereinafter referred to as the said Act), the following sub-section shall be substituted, namely:

‘(3) It shall cease to operate on such date as the Provincial Govt. may, by notification appoint in this behalf’.”

161. Shri Phadke, who appears for the applicant, points out that some of the provisions of the Act permit promulgation of orders repugnant to certain Acts of the Central Legislature, or to certain existing laws, with respect to matters enumerated in the Concurrent Legislative List & that therefore the Governor could not promulgate the Ordinance without instructions from the Governor-General. In this connection, Shri Phadke relies upon the provisions of Section 88 of the Govt. of India Act, 1935. He says also that the Ordinance does not show on its face that the Governor acted upon instructions from the Governor-General & that there is no evidence to show that such instructions were received by the Governor. If indeed the Ordinance has an effect of the kind contended for by Shri Phadke—& I shall assume that it has—there is no doubt that S. 88 does make it obligatory upon the Governor to obtain the previous instructions of the Governor-General. We have, however, been assured by the learned Advocate-General that the Ordinance in question was promulgated only after the receipt of instructions from the Governor-General in this regard. He also refers us to a copy of the telegram dated 29-9-1947 received by the Govt. of the Central Provinces which runs as follows:

“CODE TELEGRAM

Most Immediate. Despatched New Delhi Received Nagpur 29-9-47 29-9-47

From — Foreign, New Delhi,

To—C.P Nagpur.

No. 8095. Following from HOMEX To Secretary Civil Supplies Department.

Your letter No. 6290/6734-VII PC., dated 19-9-1947. Governor-General Approves promulgation of Central Provinces & Berar Regulation of Letting of Accommodation (Extending) Ordinance 1947.”

162. It seems to me that the statement of the learned Advocate-General, taken along with this telegram, is quite sufficient to show that the Ordinance was promulgated after the receipt of instructions, in that regard from the Governor-General. The fact that the receipt of previous instructions is not stated in the Ordinance itself does not affect its validity because there is no statutory requirement for publishing the fact of such instructions in the Gazette.

163. It is, however, said that since, under Section 88(2) of the Govt. of India Act, an ordinance promulgated by the Governor is deemed to be an Act of the Provincial Legislature, reserved for the consideration of the Governor-General & assented to by him & since no date is specified therein for its commencement, it would come into force under Section 3(1) of the Central Provinces General Act, 1914, on the date on which the assent thereto of the Governor or the Governor-General is published in the official gazette. Therefore, it is said, the fact of the Governor-General's assent ought to have been published in the gazette & since it was not so published, the Ordinance did not at all come into operation. In my opinion, the premise for this argument that the Ordinance in question required the Governor General's assent is erroneous. The pre-requisites for the Ordinance were the instructions of the Governor-General. Section 3(1) of the Central Provinces General Clauses Act does not require the publication of the fact that the instructions of the Governor-General were received. An ordinance promulgated under Section 88(2) of the Govt. of India Act is to have “the same force & effect as an Act of Provincial Legislature assented to by the Governor” & therefore under Section 3(1) of the General Clauses Act such an ordinance comes into force on the date of its publication in the Official Gazette. The Ordinance in question was, as I have already mentioned, published in the Central Provinces Gazette Extraordinary of 30-9-1947 & so it came into operation from that date.

164. A further argument is advanced which is to the effect that the fact of the assent of the Governor to the Extending Act of 1947 was not published in the Gazette but only that of the Governor-General's assent was published therein & so the publication of the Act in the official Gazette is ineffective. The Act does not state the date of its commencement & as it was not duly published in the Central Provinces Gazette, Shri Phadke says that it never came into force. This argument ignores Section 75 of the Govt. of India Act which is as follows:

“A Bill which has been passed by the Provincial Legislative Assembly or, in the case of a Province having a Legislative Council has been passed by both Chambers of the Provincial Legislature, shall be presented to the Governor, & the Governor in his discretion shall declare either that he assents in His Majesty's name to the bill of that he withholds assent therefrom or that he reserves the Bill for the consideration of the Governor General.”

165. I have omitted the proviso as it is not relevant here. The section makes it clear that when a Bill is passed by the Provincial Legislature, the Governor has three courses open to him (1) give his assent to the Bill in the name of His Majesty or (2) withhold his assent thereto or (3) reserve the Bill for the consideration of the Governor-General. Where the Governor follows, as in this case, the third course, there is no question of his giving an assent to the Bill. To such a case, Section 76(1) of the Govt. of India Act, applies. The relevant portion of S. 76 is as follows:

“When a Bill is reserved by a Governor for the consideration of the Governor-General, the Governor-General shall in his discretion declare, either that he assents in His Majesty's name to the Bill or that he withholds assent therefrom, or that he reserves the Bill for the signification of His Majesty's pleasure thereon.”

166. So, it is for the Governor-General to assent to the Bill “in the name of His Majesty”. Once such an assent is given, there is nothing for the Governor to do, for two authorities are not required for giving an assent to a Bill “in the name of His Majesty.” For these reasons, this argument of Shri Phadke must be rejected as equally untenable.

167. It is next argued that the Ordinance as well as the subsequent Extending Act of 1947 delegate to the State Govt. the power to determine the duration of the Act, that such a delegation is void & that consequently the Act of 1946 musk be regarded as not amended at all & to have expired on 30-9-1947 which was the date on which it was to expire by virtue of the provisions of sub-S. (s) of S. 1. In support of his contention the learned counsel relies on the decision of the Federal Court in Jatindra Nath v. Province of Bihar, A.I.R (36) 1949 F.C 175.

168. In that case, the question was whether the proviso to Sub Section (3) of Section 1 of the Bihar Maintenance of Public Order Act (V[5] of 1947) which empowered the Provincial Govt. to extend by notification the duration of the Act (which was originally one year from the date on which it came into force) for a further period of one year with such modifications, if any, provided a resolution to that effect was passed by the Bihar Legislative Assembly & agreed to by the Bihar Legislative council, amounted to delegation of legislative power. The majority of the Judges of the Federal Court came to the conclusion that the extension of the period during which a law is to remain in force is a matter for the legislature alone to determine & that the delegation of the power to the Provincial Govt. to extend a law by a notification amounts to a delegation of legislative power & is consequently void. This decision is sought to be distinguished by the learned Advocate-General on the ground that here what we are concerned with is not the extension of the period during which a law is to remain in force but with merely fixing a date on which the law was to cease to remain in operation.

169. He further says that the Legislature by amending sub-s. (3) of section 1 had already declared its will that the law was not to remain in operation for all time & merely left it to the Provincial Govt. to name the date on which it was to cease to operate & that this amounts to a delegation of merely a non-legislative power. He adds that since it is within the competence of a legislature to provide in a law that it shall come into force on such date as the Governor or some other authority appoints, the legislature is equally competent to say that it shall cease to operate on such date as the Provincial Govt. may by notification appoint. The learned counsel for the applicant, on the other hand, refers to the following observations of Kama G.J in Jatindra Nath's case, & states that they conclude the matter in favour of the contention raised by him:

“It is for the Legislature to state how long a particular legislation will be in operation.

& then, later—

“I do not think the extension of the Act beyond the first year by the Notifications can escape being classed as delegated legislation. It is not and cannot be disputed that delegated legislation, will be ultra vires.”

170. His Lordship has also said

“The power to modify an Act of a Legislature without any limitation on the extent of the power of modification, is undoubtedly a legislative power…. It seems to me, therefore, that the power contained in the proviso is legislative.”

171. But thereafter His Lordship has also observed:

“Even keeping apart the power to modify the Act I am unable to construe the proviso, worded as it is, as conditional legislation by the Provincial Govt.”

172. From this it is clear that the decision of his Lordship was based upon two independent reasons.

173. Fazl Ali, J. who was one of the five Judges who decided the case, no doubt took a different view on the point, while Patanjali Sastri, J. another learned Judge who was party to the decision, did not express any definite opinion thereon but rested his decision on a narrower ground. The remaining two judges, Mahajan & Mukherjea JJ, gave two reasons for their decision: That the proviso was had not merely because it gave power to the Provincial Govt. to modify the Act but also because it gave power to extend the duration of the Act beyond one year & up to two years.

174. The relevant observations of Mahajan, J. are to be found in para 26 of the report:

“In my opinion, no external body can be delegated with the duty of making modifications in a statute, but that is what the proviso has done. This novel device of defeating the Constitution Act adopted by the Provincial legislature cannot have the approval of this Court. It is a dangerous device to defeat the clear & unambiguous provisions of the Constitution Act & if encouraged may lead to the substitution of new law making bodies under cover of so called conditional legislation. If both the Houses of the Provincial Legislature were to meet to pass a resolution, one fails to understand why could they not meet to re-enact the law for a further period of one year; instead of passing a resolution, a Bill could be mooted & passed & assent of the Governor obtained. I am further of the opinion that the power given to extend the life of the Act for another year in the context of the language of S. 1(3) also amounts to an act of legislation & does not fall under the rule laid down in The Queen v. Burah, 5 I.A 178. The Act in a mandatory form stated that it shall be in force for one year only. That being so, the power given in the proviso to re-enact it for another year is legislative power & does not amount to conditional legislation.”

175. Besides this, he has said in para 25 of the report that the conferral of a discretion on Provincial Govt. to continue an Act or to modify or vary it is delegation of legislative power.

176. Mukherjea, J. has observed as follows in para 55 of the report:

“In my opinion, the validity of the proviso to Section 1(3) of the Bihar Maintenance of Public Order Act, cannot be upheld on the ground of its being a piece of contingent Legislation. It cannot also be supported on the ground that what it delegates is a mere non-legislative function. The duration of a statute is a matter for determination by the Legislature itself. From the language of sub-s. (3) of S. 1 & that of the proviso, it is difficult to say that the Legislature fixed the duration of the Act at two years from the date of the commencement & left it to the Provincial Govt. to determine at the end of one year in consultation with the two Houses of the Bihar Legislature whether the Act should be in operation for one year more. If that was the real intention of the Legislature, it might have been argued that it was a piece of conditional legislation only. That this was not the intention of the legislature is, however, clear from the fact that the Provincial Govt. is authorised to decide at the end of the year not merely whether the Act should be continued for another year but whether the Act itself should be modified in any way or not. To modify a statute is certainly to perform a legislative act. No restrictions have been laid down regarding the nature of the modifications that could be made.”

177. It is true that he has also said that the powers given to the Provincial Govt. to extend the duration of the Act & to modify it are so clearly inter-related as to be inseparable. That was, however, in connection with an argument addressed by Mr. Mitter on behalf of the Province of Bihar that as the Provincial Govt. had not modified any provision of the Act, the power conferred upon it to modify it be separated from the power to extend the Act & the extension held valid. Reading para. 55 of the report as a whole, it would appear that his Lordship rested his decision on two or perhaps three separate grounds, that the power to extend the duration of an Act is legislative power; that at any rate when such power is coupled with the power to modify the Act, it amounts to delegation of legislative power. That whether the Act is modified or not, the two powers conferred by the proviso being inseparable, the extension of the Act for a further period amounts to exercise of legislative power.

178. The learned Advocate. General, however, says that the observations of the learned Judges to the effect that the power to determine the duration of an Act is a legislative power are merely obiter, that they are opposed to a long line of decisions of the Privy Council & that this Court should preferably follow the Privy Council decisions than what is set out in these observations.

179. There is no doubt that the Privy Council has laid down clearly in Queen v. Burah, (1678) 3 A.C 889; Russel v. The Queen, (1882) 7 A.C 829; Hodge v. The Queen, (1883) 9 A.C 117; Powell v. Apollo Candle Co., (1885) 10 A.C 282; Maritime Bank of Canada v. Receiver-General of Rew Brunswick, (1892) A.C 437 & Croft v. Dumphy, (1933) A.C 156, that though the powers of the Indian & Dominion Legislatures are expressly limited by the Act of the Imperial Parliament which created those legislatures, still, acting within those limits, no such legislature is in any sense an agent or a delegate of the Imperial Parliament which created those Legislatures, still, acting within those limits, no such legislature is in any sense an agent or a delegate of the Imperial Parliament but has & was intended to have, plenary powers of legislation at large, & of the same nature, as those of the Parliament itself. When such a legislature exercises its powers, it does not act as an agent of the Imperial Parliament but exercises authority as plenary & as ample within the limits prescribed by the Imperial Act creating it “in the plenitude of its power possessed & could bestow”. In the words of Lord Halsbury L.C, in Riel v. The Queen, (1885) 10 A.C 675, the power such as that conferred on a Dominion Legislature must be construed so as “to authorize the utmost discretion of enactment for the attainment of the objects pointed to.” These observations were made by his Lordship while considering the power of the Dominion Parliament to legislate for the peace, order & good Government of Canada. The decision in George Walkem v. L.M.D.P Board, A.I.R (26) 1939 P.C 36, proceeds on the same basis.

180. One fundamental difference between the position of the British Parliament & that of a Dominion Legislature (as of the former Indian Legislature) must be borne in mind. It is that the latter owes its existence to a written constitution & is therefore, subject to it while the former operates under no such limitation. Thus, the British Parliament is not fettered by any restrictions, in the matter of delegation even of its legislative powers as, indeed, it has delegated such power to the Legislatures of the Dominions & the Colonies—whereas a Dominion Legislature is incompetent to delegate purely legislative power, at any rate in a substantial way. This seems to follow from all the decisions of the Privy Council to which I have already referred.

181. The reason for the rule that Legislature Cannot delegate its legislative power is that the Constitution having conferred upon the Legislature alone the power to legislate, it is not within the competence of the Legislature to abdicate its functions and surrender that power to any other body or authority or person. Indeed, if a Legislature were enabled to do so, it would be bringing into existence a law-making authority which is wholly outside the Constitution. A distinction must of course be drawn between delegation of legislative power & delegation of non legislative power, such as the power to make rules, bye-laws and other similar things for carrying out the purposes of a law enacted by the Legislature. This latter, which is known as subordinate Legislation, can well be left by a Legislature to an administrative body or some other authority but not so the power to enact the main legislation. Similarly, it is open to the Legislature to pass conditional legislation, that is, legislation which leaves it to another authority to prescribe the time of its commencement or the area of its operation after ascertainment of certain facts. Fairly recently the Privy Council in Emperor v. Benoari Lal, A.I.R (32) 1945 P.C 48, upheld the Special Criminal Courts Ordinance No. 2 of 1942 framed by the Governor General which authorised the Provincial Govt. to set up Special Courts within their jurisdiction & determine the class or classes of cases which could be tried by such Courts. An objection was taken that this amounted to delegation of legislative power. Overruling it, Lord Simon observed:

“This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is determined by the judgment of a local administrative body as to its necessity.”

182. The question then is whether the power given by the Amending Act of 1947 to the Provincial Govt. to determine by notification the date on which the Act should cease to remain in force is something short of delegation of legislative power. Indeed, the observations of the learned Chief Justice of India & two of his colleagues, in Jatindra Nath's case make it clear that it is for the Legislature to prescribe the duration of an Act which was one of the reasons given by each of them in support of his decision in that case. In the face of these observations, it would be difficult to say that the provision to the extent that it authorised the Provincial Govt. to determine the operation of the Act is not delegation of legislative power. The learned Advocate-General however, says that the Legislature had fulfilled its legislative function in the matter of prescribing the duration of the Act because by leaving it to the Provincial Govt. to determine the date of the cessation of the Act, it had declared its will that the Act was not to be of an unlimited duration. I am afraid I cannot accept the contention because by leaving it to the Provincial Govt. to appoint the date for the cessation of an Act it cannot be said to have exhausted its legislative power with regard to the particular matter. The Legislature & no other authority could prescribe the precise duration of an Act & until it did that, a residuum of the legislative power must be regarded as unexercised. In leaving it to the Provincial Govt. to exercise that power, the Legislature has done nothing less than delegating a portion of its legislative power to the Provincial Govt. This it could not do without overstepping constitutional limits.

183. I am clear that the impugned provision is not conditional legislation. What is conditional legislation is described by Lord Selborne in The Queen v. Burah, (1878) 3 A.C 889 to be legislation which the proper legislature after exercising its judgment as to “place, person, laws, powers” entrusts to another authority to determine the time of its commencement & the manner of carrying it into effect (such as determining from time to time the area of its operation). He does not include within this description legislation the duration of which is to be determined by another authority. Indeed, his observations at page 906,

“The conditions having been fulfilled, the legislation has now become absolute”

184. Made concerning the effect of the application of Act XXII(22) of 1869 by the Governor-General to the Khasi & Jaintia Hills, appear to preclude the inference that legislation of the kind impugned here falls within the category of “conditional legislation”. For, only legislation which at its inception is inchoate is capable of becoming absolute after the fulfilment of the condition. As observed by Mahajan, J. in Jatindra Nath's case:

“Distinction between delegation of power to make the law which necessarily involves a discretion as to what it shall be, & conferring discretion or authority as to its execution to be exercised under & in pursuance of the law is a true one & has to be made in all cases where such a question is raised. In cases of conditional legislation on fulfillment of the condition, the legislation becomes absolute. But in ceases of delegated legislation, the delegate has to take a decision whether that legislation is to continue or has to be modified or amended or varied.”

185. Here, the delegate, i.e, the Provincial Govt. has to decide upon the point of time at which the legislation was to cease to continue & this falls within the description of delegated legislation given by Mahajan, J.

186. Those cases in which the Privy Council has upheld the validity of laws enacted by Dominion Legislatures, leaving it to the executive Govt. or some other authority to determine when to bring a law into force & in which area to apply it, are distinguishable because a law which has already been enacted is one thing & enacting a law or putting an end to a law (which is the same thing as repealing it) is another. Enacting a law & repealing a law are purely legislative functions. Applying or not applying a law or, having applied the law, to withdraw it (when the provisions of the law permit such a course) is an administrative function, & while the power in regard to the latter is susceptible of delegation, the power in regard to the former is not. In none of the Privy Council cases to which I have referred was it held that the power to efface a law from the statute book could be delegated. Indeed, when a law of a Provincial Legislature in a Dominion went to the length of delegating to the voters the power to make and repeal laws, the Privy Council held in In re the Initiative And Referendum Act, (1919) A.C 935 at p. 945:

“No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen, (1883) 9 A.C 117, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create & endow with its own capacity a new legislative power not created by the act to which it owes its own existence.”

187. That law altogether excluded the Lieutenant Governor & thus abrogated the power which the Crown possessed through the Lieutenant Governor. Here, too, the effect of the law is to remove the Governor from the picture & thus indirectly affect His Majesty's power exercisable under Section 75 of the Govt. of India Act, through the Governor. The ratio of this decision would, therefore, in my judgment, apply to the present case.

188. I, however, think it necessary to refer to two decisions of the Privy Council & distinguish them from the present case & the case just cited. The first of these decisions is Russell v. The Queen, (1882) 7 A.C 829, to which I have already referred. In that case, their Lordships laid down that it is open to a Provincial Legislature to confer upon any authority the power to determine the period for which a statute would remain in force in a particular county or city. I may, however, point out that in that case the effect of the exercise of the particular power by the authority on whom the power was conferred did not bring the statute itself to end. As I have already said to apply or not to apply a law to a particular area or, having applied it, to withdraw it, is not a legislative function at all. All the same, I thought it desirable to refer to the decision in Russell's case in particular because there is an apparent similarity between that case & the present one.

189. The other decision to which I would make reference is that in George Walkem v. L.M.D.P Board, A.I.R (26) 1939 P.C 36. There, Lord Atkin, delivering the judgment of the Board, has observed:

“The third objection is that it is not within the powers of the Provincial Legislature to delegate so-called legislative powers to the Lieutenant-Governor in Council or to give him powers of further delegation. This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys while dealing with the matters falling within the classes of subjects in relation to which the constitution granted legislative powers. Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament; and it is unnecessary to try to enumerate the innumerable occasions in which Legislatures both Provincial and Dominion & Imperial have entrusted various persons and bodies with similar powers to those contained in this Act.”

190. All that I need point out is that these observations were made by his Lordship in connection with the delegation of power by the Legislature of British Columbia to the Lieutenant Governor for issuing licences under the Natural Products Marketing (British Columbia) Act, 1936, which power he was enabled to delegate to a Board. The power delegated to him and which he was empowered to delegate further is not a legislative power at all. Clearly, therefore, these observations have to be understood in the context in which they were made and cannot be regarded as laying down any broad principle of general application.

191. Three High Courts have deduced the same principles from the decision an Jatindra Nath's case as I have done. These decisions are Badal Bose v. Secretary, Govt. West Bengal, 53 C.W.N 728, In re Veerabadrayya, A.I.R (37) 1950 Mad. 243 & Ram Kishan v. State, A.I.R (38) 1951 ALL. 181. A dissenting note has, however, been struck by the majority in Kishori Lal v. Debi Prasad, A.I.R (37) 1950 Pat. 50, who held that it is permissible to leave to the discretion of the executive Govt. to determine the duration of a statute. Meredith, J. who was one of the Judges constituting the Bench, disagreed with the majority saying that he felt bound to accept the principles laid down in Jatindra Nath's case held that the particular power could not be validly delegated by the Legislature to the executive Government.

192. The view I have taken of the Privy Council decision in The Queen v. Burah, (1878) 3 A.C 889 & allied cases accords with that taken by the Calcutta & Madras High Courts & has received confirmation from the opinion of Wali Ullah, J. in Ram Kishan v. State, A.I.R (38) 1951 ALL. 181, with which his two colleagues agreed, which was published after I had dictated my order. Some of the reasons given by the learned Judge for holding that the delegation by an Indian Legislature of its legislative power to another authority is invalid coincide with those given by me. The learned Judge has, however, given some additional reasons for coming to the particular conclusion & has quoted extensive authority in support of his conclusion. As his opinion is readily available for reference, I do not think it necessary to quote extensively therefrom. I, therefore, express my respectful agreement with what the learned Judge has said in paras. 46 to 49 of his opinion, but would quote the following passage from para. 57 of his opinion because it would facilitate the comparison of his opinion with that expressed by me:

‘It may be observed that the Supplies Act is a temporary Act; as such it would continue for a fixed period or until repealed or altered earlier. Whether a particular Act will be a permanent Act or only of a temporary duration is a question which has to be determined by the Legislature itself. It follows, therefore, that the life of an Act must be determined by the exercise of the legislative will of the appropriate Legislature. Conditional legislation or delegation of a power to apply a particular Act which is already on the statute book to certain specified areas or specified classes of persons or even of determining the time of its commencement or the extent of its operation with regard to area etc., is very different from the extension of the life of a temporary Act. As soon as the period fixed for the operation of a temporary Act expires, the Act automatically ceases to operate. It would thus appear that there is no real analogy between ‘conditional legislation’ which authorizes a non-legislative authority to determine the commencement or termination of an Act & an act done in exercise of a power to determine the life of an enactment itself. In one sense the power of extending the life of an Act is in reality a power to revive the Act, i.e, to bring the Act into existence for a further period. In the present case, by its own force, the Supplies Act remained in force for one year from 1-10-1946, thereafter the continuance of the Act in force for another year depended entirely on the discretion of the Provincial Govt. The duration of a Statute is a matter for determination by the Legislature itself. The prolongation of the life of an Act would appear to be of the nature of an essentially legislative act, according to the decision of the Federal Court in the case of Jatindra Nath Gupta, A.I.R (36) 1949 F.C 175. Delegation of such a power is, according to that decision, not permitted by law. In the present case, the prolongation, or extension, of the life of the Supplies Act can be effected by the Provincial Government even without the intervention of a resolution passed by any of the Chambers of the Legislature of the province in favour of such an extension.”

193. The decision in Jatindra Nath's case was applied by the Bombay High Court in Narottamdas v. A.P Phillips, A.I.R (38) 1951 Bom. 180. In that case, section 4 of the Bombay City Civil Courts Act of 1948 was challenged on the ground that it operates as delegation of legislative power. The Chief Justice of Bombay, with whom his colleague agreed, held, following Jatindra Nath's case, that the section was ultra vires the Legislature because it amounted to delegation of legislitive power by the Provincial Legislature to the Govt. This decision has now been reversed by the Supreme Court. The decision of the Supreme Court is published in the March issue of All India Reporter & came to my notice after I had dictated my opinion.

194. In order to appreciate what was held by the Bombay High Court in Narottamdas' case, A.I.R (38) 1951 Bom. 180, it is necessary to set out the relevant provisions of the Act which the High Court was called upon to interpret. Section 3 of the Bombay City Civil Courts Act deals with the constitution of the new Court & provides that:

‘The Provincial Govt. may, by notification in the official Gazette, establish for the Greater Bombay a Court, to be called the Bombay City Civil Court. Notwithstanding anything contained in any law, such Court shall have jurisdiction to receive, try & dispose of all suits & other proceedings of a civil nature not exceeding ten thousand rupees in value, & arising within the Greater Bombay, except suits or proceedings which are cognizable.”

195. Then follows the four sub-clauses which exempt from the jurisdiction of the City Civil Court suits mentioned in those sub-clauses. Then there is a proviso enabling the Provincial Govt. from time to time, after consultation with the High Court, to extend by a notification the jurisdiction of the City Court to any suits or proceedings of the nature specified in cls. (a) & (b) of that section. Then comes S. 4, which is as follows:

“Subject to the exceptions specified in S. 3, the Provincial Govt. may, by notification in the Official Gazette, invest the Gity Civil Court with jurisdiction to receive, try dispose of all suits & other proceedings of a civil nature arising within the Greater Bombay and of such value not exceeding twenty thousand rupees as may be specified in the Notification.”

196. In pursuance of the powers conferred by this section, the Provincial Govt. issued a notification on 20-1-1950, the effect of which may be briefly stated to be the extension of the jurisdiction of the City Court to receive, try & dispose of all suits & other proceedings of a civil nature not exceeding Rs. 25,000 in value & arising within the Greater Bombay, subject to the exceptions specified in S. 3 of the Act.

197. It was contended that the whole of the Act was ultra vires the Provincial Legislature. In the alternative, it was contended that at any rate S. 4 was ultra vires the Legislature. The learned Judges, who decided the case, negatived the first contention but upheld the second one. Their decision was based upon the decision in Jatindara Nath's case. Chagla, C.J, who delivered the judgment of the Court, has set out the reasons for his view as follows:

“I should also like to point out the very great distinction that exists in constitutional law between the powers of Imperial Parliament & the powers of Provincial Legislature under the Govt. of India Act. The Imperial Parliament is supreme & sovereign in a sense higher than the Provincial Legislature. It possesses wider powers than the Provincial Legislature, & one of its attributes is that it can create law-making bodies which can pass laws which the Parliament itself can make. That attribute is not possessed by the Provincial Legislature. Therefore, supreme & sovereign within its own province though the Provincial Legislature may be, it is still a creature of the Govt. of India Act and under that Act its jurisdiction is confined to making of laws with regard to subjects contained in Sch. 7. It has no power to permit any other authority to pass those laws, or in other words, it cannot delegate its own function of law-making to any other agency or authority. Under the circumstances, in my opinion, S. 4 is ultra vires the Provincial Legislature inasmuch as it has purported to delegate to the Provincial Govt. the power to invest the City Court with a jurisdiction exceeding ten thousand rupees already conferred upon it by S. 3 of the Act. If that be so, the notification issued by the Govt. in pursuance of that Section on 20-1-1950, is invalid & can be of no effect. The result is that the City Civil Court has not been validly invested with jurisdiction beyond the pecuniary jurisdiction of ten thousand rupees, & therefore, the jurisdiction to receive, try & dispose of suits & other proceedings of the value of over ten thousand rupees continues to remain vested in this High Court.”

198. With great respect to the Bombay Judges I may say that the delegation of power made by Section 4 of the Bombay Act, was quite obviously not of a legislative power. The power conferred by that section was clearly analogous to that conferred upon an external authority by the Legislature in Russell v. The Queen, (1882) 7 A.C 829 and Hodge v. The Queen, (1883) 9 A.C 117, and must be classed as non-legislative.

199. Four of the learned Judges, who decided Jatindra Nath's case, heard the appeal from the decision of the Bombay High Court along with Das, J. They held that the decision in Jatindra Nath's case, was no authority for the view taken by the Bombay High Court & that the Bombay case stood well outside the decision of the Federal Court. It is pertinent to note that Mahajan & Mukherjea, JJ. were content to say that their decision in Jatindra Nath's case, was based upon the fact that there the proviso conferred on the Provincial Govt. the power to modify the Act as well as to extend it, whereas Section 4 of the Bombay Act, gave no power to the Provincial Govt. to modify the Act. Das, J. reserved his right to consider the correctness of the decision in Jatindra Nath's case, while, as I have already pointed out, Fazl Ali, J. had taken a view different from the majority in Jatindra Nath's case, & Patanjali Sastri, J. had rested his decision on a different ground.

200. From the quotations given by me from the judgments delivered by Kania, C.J & Mahajan & Mukherjea, JJ., it would be clear that each of their Lordships has individually given two separate reasons for holding that the proviso to sub-s. (3) of section 1 of the Bihar Maintenance by Public Order Act (V[5] of 1947) was ultra vires the Legislature. Where a decision of a superior Court is based upon more than one ground or supported by more than one reason, it is not open 60 an inferior Court, which is bound to follow its decision, to treat either of the reasons given as art obiter. In this connection, I think it would be useful to quote from a recent decision of the House of Lords in Jacobs v. London County Council, (1950) 1 ALL E.R 737 at pp. 740, 741:

“My Lords, I can entertain no doubt that Fairman's Case decided that Mrs. Fairman was a licensee on the premises where she suffered damage & that decision was the ratio decidendi or a ratio decidendi (it matters not which) of the case. It is not, I think, always easy to determine how far, when several issues are raised in a case & a determination of any one of them is decisive in favour of one or other of the parties, the observations on other issues are to be regarded as obiter. That is the inevitable result of our system. For while it is the primary duty of a Court of Justice to dispense justice to litigants, it is its traditional rule to do so by means of an exposition of the relevant law………. There is, in my opinion, no justification for regarding as obiter dictum a reason given by a judge for his decision, because he has given another reason also. If it were a proper test to ask whether the decision would have been the same apart from the proposition alleged to be obiter, then a case which ex facie decided two things would decide nothing. A good illustration will be found in London Jewellers Ltd. v. Attenborough, (1934) 2 K.B 206. In that case the determination of one of the issues depended on how far the Court of Appeal was bound by its previous decision in Folkes v. King, (1923) 1 K.B 282, in which the Court had given two grounds for its decision, the second of which as stated by Greer, L.J in Attenborough's case at p. 222) was that:

‘… where a man obtains possession with authority to sell, or to become the owner himself, & then sells, he cannot be treated as having obtained the goods by larceny by a trick.’

201. In Attenborough's case it was contended that since there was another reason given for the decision in Folke's case, the second reason was obiter but Greer L.J, said, (1934) 2 K.B 206 at p. 222 in reference to the argument of counsel:’

‘I cannot help feeling that if we were unhampered by authority there is much to be said for this proposition which commended itself to Swift, J., & which commended itself to me in Folkes v. King, (1923) 1 K.B 282, but that view is not open to us in view of the decision of the Court of Appeal in Folkes v. King, (1923) 1 K.B 282. In that case two reasons were given by all the members of the Court of Appeal for their decision & we are not entitled to pick out the first reason as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi & neglect the first; we must take both as forming the ground of the judgment.’

202. So also in Cheater v. Cater, (1918) 1 K.B 247, Pickford L.J after citing a passage from the judgment of Mellish L.J in Erskine v. Adeane, (1873) 8 Ch. A. 756 said:

‘That is a distinct statement of the law & not a dictum. It is the second ground given by the Lord Justice for his judgment. If a Judge states two grounds for his judgment & bases his decision upon both, neither of these grounds is a dictum.’”

203. There is, unquestionably, a difficulty where the judgment of a superior Court, consisting of more than one judge, have to be considered. Here, the difficulty is all the more greater as, on the one hand, we have the conclusion of three out of five judges who decided Jatindra Nath's case, that the power to determine the duration of a statute is a legislative power &, on the other, the fact that two out of these very Judges did not reiterate that view in Narottamdas' case. Their Lordships of the Supreme Court have, however, not overruled Jatindra Nath's case & so, the law as expounded by them in Jatindra Nath's case is binding on us. (Mata Prasad v. Nageshar Sahai, 52 I.A 398 at p. 417.)

204. Harreis, C.J has observed in Badal Bose v. Chief Secretary, Government, West Bengal, 53 C.W.N 728:

“It being the duty of the Federal Court which had become the Supreme Court of India to lay down the law & to state the principles of law applicable, even its obiter dicta must ordinarily be followed by inferior Courts, including High Courts, unless there is very good reason for not doing so.”

205. It is difficult to say that the particular reason given by three of the learned Judges of the Federal Court in Jatindra Nath's case is an obiter dictum and so, though two of them have not chosen to reaffirm it in Narottamdas' case, I consider that it is binding on this High Court, at any rate, till it is expressly overruled by the Supreme Court. In the circumstances, I feel bound to hold that the delegation of the power to determine the duration of an Act is invalid.

206. The next question is, what is the effect of all this? According to Shri Phadke, the Ordinance as well as the Amending Act of 1947 must be ignored & consequently the Central Provinces & Berar Regulation of Letting of Accommodation Act, 1946 must be held to have expired on 30-9-1947. Thus, he says, there was no lawful authority for making the Central Provinces & Berar Letting of Houses & Bent Control Order 1949 under which the Deputy Commissioner has interfered with the contract between the applicant & non-applicant 4.

207. I do not think that either the Ordinance or the Amending Act of 1947 can be ignored. For, it was unquestionably within the competence of the, Governor to make an Ordinance amending the provisions of the Act of 1946 & of the Legislature to pass an Act for the same purpose. In other words, there was no absence of initial jurisdiction in the Governor to make the Ordinance or in the Legislature to enact the Amending Act, impliedly repealing the provision which had limited its duration to one year & substituting in its place a difficult provision. What neither the Governor nor the Legislature could do was delegation of legislative power to the Provincial Govt. Therefore, while the Act of 1946 will now be deemed to contain the provision made by the Amending Act of 1947, that part of the provision which delegates to the Provincial Govt. the power to appoint the date for the termination of the Act will have to be ignored as it is invalid:

“Simply because a statute happens to be unconstitutional or invalid in part, does not necessarily mean that the part which is not invalid must also fail.” (Crawford, Statutory Construction, p. 216; see also Connolly v. Union Sewer Pipe Co., (1902) 184 U.S 540)

208. The Act of 1946 will thus have to be regarded as a law of which the duration has not been prescribed &, according to the recognised rule of construction, to be a “perpetual” Act in the sense that it shall remain in force until it is repealed by the legislature. It may be said that upon this construction a temporary Act has been made perpetual & that this would not be in accord with the will of the Legislature. On the other hand, if the Ordinance & the Act are ignored, the law will have to be regarded as having expired on 1-10-1947 whereas the Legislature had expressly intended to keep it alive. It would, therefore, be more closely in accord with the intention of the Legislature to hold that the Act has become perpetual rather than to hold that it has expired. I, therefore, think that even if regard is to he had to the intention of the Legislature, the former construction ought to be placed in preference to the latter.

209. The next part of the argument is directed against the Rent Control Order of 1949. It is said that this Order is invalid because it is a piece of delegated legislation and, besides, it had not received the assent of the Governor-General under Section 107 of the Government of India Act.

210. The relevant part of S. 107 is as follows:

“Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative list contains any provision repugnant to the provisions of an earlier Federal law or an existing Indian Law with respect to that matter then, if the Provincial Law, having been reserved for the consideration of the Governor-General or for the signification of His Majestys' pleasure, has received the assent of the Governor General or of His Majesty, the Provincial law shall in that province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter.”

211. It requires the assent of Ihe Governor General to a “provincial law.” The term “provincial law” is defined thus in Section 311(2) of the Govt. of India Act:

“Provincial Act & “Provincial law” mean, subject to the provisions of this section, an Act passed or law made by a Provincial Legislature established under this Act.”

212. It does not include, as does “an existing Indian law” defined in that very section, an “order, bylaw, rule or regulation” (though it would, by virtue of S. 88(2), include an Ordinance). Clearly, therefore, the Rent Control Order, whatever its effect be by virtue of the provisions of the Regulation of Letting of Accommodation Act, 1946, cannot be classed as a Provincial law for the purposes of Section 107(2) of the Govt. of India Act. Accordingly, I am of the opinion that it was not necessary to reserve this Order for the consideration of the Governor-General & to obtain his assent thereto.

213. Reliance was placed by Shri Phadke on the opinion of Richardson, J. at page 984 in Goberdhan Das v. Doolichand, 48 Cal. 955 in support of the proposition that when the Governor-General's assent is necessary to an Act, it is also necessary to a rule made thereunder if the Act, with such a rule incorporated therein, could not have been made without such assent. That case arose when the Govt. of India Act of 1915 was in force & the opinion of the learned Judge is evidently based on the provisions of that Act. The decision is, therefore, not in point.

214. What remains to be considered is whether the Rent Control Order amounts to “delegated legislation.” Section 2 of the Regulation of Letting of Accommodation Act, 1946, empowers the Provincial Govt.—(1) to extend the provisions of the Act to such areas as the Provincial Govt. may by notification provide & (1) to provide for regulating of letting & sub-letting of any accommodation or class of accommodation & in particular for the following four categories of objects specified in Cls. (a) to (d) to that section:

“(a) for controlling the rents for such accommodation either generally or when let to specified persons or classes of persons or in specified circumstances,

(b) for preventing the eviction of tenants or subtenants from such accommodation in specified circumstances,

(c) for requiring such accommodation to be let either generally, or to specified persons or classes of persons, or in specified circumstances, &

(d) for collecting any information or satistics with a view to regulating any of the aforesaid matters.”

215. Powers similar to those conferred by Colonial Legislatures upon the executive or some other authority have been held by the Privy Council not to amount to delegation of legislative power in most of the cases I have already cited. In particular, I would refer to the decisions in Hodge v. The Queen, (1883) 9 A.C 117 & Emperor v. Benori Lal, A.I.R (32) 1945 P.C 48.

216. In Hodge's case, Section 3 of the Liquor License Act of 1877 conferred power on the Lieutenant Governor to appoint a Board of License Commissioners for each city, county etc., & Ss. 4, 5 & some other sections upon such Board for regulating & determining certain matters. Section 4 of that Act runs thus:

“License Commissioners may, at any time before the first day in each year, pass a resolution, or resolutions, for regulating and determining the matters following, that is to say:

(1) For defining the conditions & qualifications requisite to obtain tavern licenses for the retail within the municipality, of spirituous, fermented, or other manufactured liquors, & also shop licenses for the sale by retail, within the municipality, of such liquors in shops or places other than taverns, inns, ale-houses, beer-houses, or places of public entertainment.

(2) For limiting the number of tavern & shop licenses respectively, and for defining the respective times & localities within which, & the persons to whom, such limited number may be issued within the year from the first day of May on one year till the thirtieth day of April inclusive of the next year.

(3) For declaring that in cities a number not exceeding ten persons, & in Towns a number not exceeding four persons qualified to have a tavern license, may be exempted from the necessity of having all the tavern accommodation required by law.

(4) For regulating the taverns, & shops to be licensed.

(5) For fixing & defining the-duties, powers, & privileges of the inspector of licenses of their district.”

217. Section 5 is in the following terms:

“In & by any such resolution of a Board of License Commissioners the said Board may impose penalties for the infraction thereof.”

218. The contention raised was that Sections 4 & 5 of the Liquor License Act were ultra vires of the Legislature. One of the grounds on which the vires of these sections was challenged was that they amounted to delegation of legislative power by the Legislature to the Board. Their Lordships repelled the contention in the following words:

“It appears to their Lordships, however, that the objection thus raised by the appellants is founded on an entire misconception of the true character & position of the Provincial legislatures. They are in no sense, delegates of or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a legislature for Ontario, & that its legislative assembly should have exclusive authority to make laws for the Province & for provincial purposes in relation to the matters enumerated in S. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary & as ample within the limits prescribed by S. 92 as the Imperial Parliament in the plenitude of its power possessed & could bestow. Within these limits of subjects & area the local legislature is supreme, & has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by laws or resolutions as to subjects specified in the enactment, & with the object of carrying the enactment into operation & effect.

It is obvious that such an authority is ancillary to legislation, & without it an attempt to provide for varying details & machinery to carry them out might become oppressive, or absolutely fail. The very full & very elaborate judgment of the Court of Appeal contains abundance of precedents for this legislation, entrusting a limited discretionary authority to others, & has many illustrations of its necessity & convenience. It was argued at the bar that a legislature commisting important regulations to agents or delegates effaces itself. That is not so. It retains its powers intact, & can, whenever it pleases, destroy the agency it has created & set up another, or take the matter directly into his own hands. How far it shall seek the aid of subordinate agencies, & how long it shall continue them, are matters for each legislature, & not for Courts of law, to decide.

Their Lordships do not think it necessary to pursue this subject further, save to add that, if by-laws or resolutions are warranted, power to enforce them seems necessary & equally lawful.”

219. The extent of delegation of authority made in Section 2 of the Regulation of Letting of Accommodation Act, 1946 is comparable with that in Sections 4 & 5 of the Liquor License Act, & in my opinion, the observations of their Lordships in connection with the latter apply with full force to the former.

220. I have referred to Bencari Lal's case earlier but I would refer to it again in greater detail. There, the validity of certain sections of the Special Criminal Courts Ordinance of 1942 was challenged on the ground that they purported to delegate the Governor-General's legislative power to Provincial Govt. and to executive officers. Ss. 5, 10 & 16 of the Ordinance permitted trial by a “Special Judge” of such offences or classes of offences or such case or classes of cases as the Provincial Govt. or a servant of the Crown empowered by the Provincial Govt. may by general or special order direct. It was urged on behalf of the Crown that these provisions were merely ancillary, subordinate or incidental to the object & the main provisions of the Ordinance & that they did not amount to delegation of legislative power.

221. This argument did not find favour with the Federal Court but was accepted by the Privy Council. Lord Simon, delivering the opinion of the Board, relied upon Russell's case, (1882) 7 A.C 829, & stated:

“The second objection has attracted more support, but is, in their Lordship's opinion, equally unfounded. It is undoubtedly true that the Governor-General, acting under para. 72 of Sch. 9, must himself discharge the duty of legislation there cast upon him, & cannot transfer it to other authorities. But the Governor General has not delegated his legislative powers at all… Their Lordships are unable to see that there was any valid objection, in point of legality, to the Governor-General's Ordinance taking the form that the actual setting up of a Special Court under the terms of the Ordinance should take place at the time & within the limits judged to be necessary by the Provincial Govt. specially concerned. This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is determined by the judgment of a local administrative body as to its necessity. Their Lordships are in entire agreement with the view of the Chief Justice of Bengal & of Khundkar, J. on this part of the case. The latter Judge appositely quotes a passage from the judgment of the Privy Council in the well-known decision in Charles Russell v. The Queen, (1882) 7 A.C 829. In that case the Canadian Temperance Act, 1878, was challenged on the ground that it was ultra vires of the powers of the Parliament Act of Canada. The Temperance Act was to be brought into force in any county or city, if upon a vote of a majority of the electors of that county or city favouring such course, the Governor-General by Order in Council declared the relative part of the Act to be in force. It was held by the Privy Council that this provision did not amount to a delegation of legislative power to a majority of the voters in a city or county. Their Lordships said:

‘The short answer to this objection is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer on these persons powers to legislate. Parliament itself enacts, the condition & everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases convenient, & is certainly not unusual, & the power so to legislate court be denied to the Parliament of Canada, when the subject of legislation is within its competency…. If authority on the point were necessary, it will be found in the case of The Queen v. Burah, (1878) 3 A.C 889, lately before this Board.”

222. These observations justify the conclusion that the power to frame certain kinds of rules or orders for regulating residential accommodation cannot be regarded as delegation of legislative power. When the power so delegated expressly permits making of rules or orders in conflict with an existing law, the delegation is invalid, but where it does not go to this length &, acting in pursuance of a general power to make rules & orders, a rule or order is made by the delegate which is repugnant to an existing law, it is not the delegation which is rendered invalid but the excessive rule or order purported to be made thereunder. I need not pursue this matter further as Shri Phadke had not, in his arguments, challenged the validity of any of the clauses of the Bent Control Order on the ground that it is repugnant to the provisions of an existing law. Shri Badkas, who argued Miscellaneous Petition No. 61 of 1950 & raised some points which are common to the present case, did challenge cls. 22 to 24A of the Order but none of these clauses affect the applicant at all in either case. I, therefore, see no reason to pronounce my opinion upon them.

223. On the Question of delegation, I may also point out that the decision in Jatindra Nath's case itself recognises the validity of conditional legislation. It has now been generally accepted by the Courts not only in India but also in England & America that the Legislature has undoubted power to delegate to a subordinate agency the power to frame rules for carrying into effect a law passed by it. It is necessary that the Legislature must have such power because the time at its disposal is not sufficient for it to go into details. Again, a matter may involve various technical questions which it would be neither convenient nor possible for the Legislature to deal with. It is these considerations which led the Courts to accept the delegation of authority by a Legislature to another authority as valid. This delegation is often, conditioned by certain requirements. Thus, for instance, the Legislature must declare its policy & fix the legal principles which are to control the exercise by the delegate of the powers conferred upon him where it has done this, it has been held by the Courts that it can give discretion to a subordinate agency or to another department of Government to give effect to that policy by framing rules or making orders as may be necessary for the purpose in view.

224. For these reasons, I am of opinion that the Central Provinces & Berar Regulation of Letting of Accommodation Act (XI [11] of 1946), as well as the C.P & Berar Letting of Houses & Rent Control Order, 1949 are valid: Since the petition for a writ of certiorari or mandamus is founded only upon the contention that the Act or, alternatively, the Rent Control Order of 1949, is invalid, it must, in the view I have taken, fail. Before parting with the case, I would like to observe that upon my view regarding the duration of the Act, it might perhaps be said that the fundamental right with regard to the enjoyment of one's property conferred by Article 19(f) of the Constitution would be abridged. As, however, the point was not argued before us, I would say nothing about it & leave the question open.

225. In view of our opinions recorded separately, this application is dismissed with costs. Counsel's fee Rs. 75.

226. Application dismissed.