TMI Blog1954 (5) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... ipal limits of Patna and was not liable to municipal and cognate taxation. On 18th April, 1951, this area was brought within municipal limits and was subjected. to municipal taxation. This was accomplished by a notification of that date. By reason of this the appellant and the others whom he represents were called upon to pay taxes for the period 1 st April, 195 1, to 31st March, 1952. The notifications were issued under sections 3(1)(f) and 5 of the Patna Administration Act of 1915 (Bihar and Orissa Act I of 1915). The appellant claims that the notifications are delegated legislation and so are bad and prays that sections 3(1)(f) and 5 of the Act which permitted this delegation be condemned as ultra vires. In order to appreciate the points raised it will be necessary to go back to the year 1911 when the Province of Bihar and Orissa was formed. It will also be necessary to bear in mind that we have to deal with three separate sections in the area which is now called Patna. In order to avoid confusion we will call them Patna City, Patna Administration and Patna Village respectively. It must be understood that this is a purely arbitrary nomenclature adopted by us for the purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extend to Patna the provisions of any section of the said Act (the Bengal Municipal Act of 1884) subject to such restrictions and modifications as the Local Government may think fit. This is a part of the impugned portion. Section 5, which is also impugned, runs- The Local Government may at any time cancel or modify any order under section 3. Section 6(b) is also relevant, though it is not challenged. It says, omitting unnecessary words, that- The Local Government may .................................. ; (b) include within Patna any local area in the vicinity of the same and defined in the notification. We refer to this here because the area we have called Patna Village *as later brought under the jurisdiction of a new municipality called the Patna Administration Committee by action taken under this section. Armed with the powers which this Act conferred, the Local Government created the new Municipality and called it the Patna Administration Committee and, by a series of notifications with which we are not concern ed, extended certain sections of the Bengal Municipal Act of '1884 to the area which we have called Patna Administration. The result of al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (1) of section 3 of the said Act (that is, the Patna Administration Act, 1915) shall be deemed to continue to extend to Patna until the extension of such section to Patna is expressly cancelled by notification. Three years later, the Governor cancelled all previous notifications extending sections of the Bengal Act of 1884, and the Bihar and Orissa Act of 1922, to the Patna Administration area. In their places he picked out certain sections of the Bihar and Orissa Act of 1922, modified;others, and extended the lot so selected and modified to the Patna Administration area. This was done by Notification No. 4594 L. S. G. dated 25th April, 1931. It gave a sort of fresh Municipal Code to this area. There were, however, significant differences between this and the Act of 1922; for example, sections 4, 5, 6, 84 and 104 of the Act of 1922 were omitted altogether. Nothing further happened, till 1951. In the meanwhile, the Constitution of India came into force on 26th January, 1950. We refer to this because before the Constitution the Local Government was empowered to act under section 3(1) (f) and section 6(b) of the Patna Administration Act, 1915. After the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Bengal Municipal Act of 1884 was no longer one of the existing laws in the State of Bihar on that date. It was repealed in full in 1922 and was replaced by the Bihar, and Orissa Municipal Act of 1922. The selected sections of the Bengal Act of 1884 which the Local Government had picked out and applied to Patna Ad- ministration were also repealed on 25th April, 1931, and in their place was substituted another set of sections picked out by the Local Government from the Bihar and Orissa Act of 1922 and modified in places. The facts accordingly narrow down to this. In 1928 an executive authority (the Local Government of Bihar and Orissa), subject to the legislative control of the Bihar and Orissa Legislature, was empowered by that Legislature (because of Act I of 1915 amended by Act IV of 1928) to do the following things:- (1)to cancel or modify any existing Municipal laws inthe Patna Administration area (2)to extend to this area all or any of the sections of the- Bihar and Orissa Municipal Act of 1922 subject to such restrictions and modifications as it considered fit; (3) to add to the Patna Administration area other areas not already under municipal control. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol to apply, at its discretion, laws to an area which was also under the legislative sway of the Centre. The variations occur in the type of laws which the executive authority was authorised to select and in the modifications which it was empowered to make in them. The variations were as follows: (1) Where the executive authority was permitted, at its discretion, to -apply without modification (save incidental changes such as name and place), the whole of any Central Act already in existence in any part of India under the legislative away of the Centre to the new area : This was upheld by a majority of six to one. (2) Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances: This was also upheld, but this time by a majority of five to two. (3) Where the executive authority was permitted to select future Central laws and apply them in a similar way: This was upheld by five to two. (4) Where the authorisation was to select future Provincial laws and apply them as above: This was also upheld by five to two. (5) Where the authorisation was to repeal laws already in force in the area and either substitute nothing in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inconvenient to do. In other words, it can do everything which is ancillary to and necessary' for the full and effective exercise of its power of legislation. He dealt with the power to modify at page 846 and said- The power of introducing necessary restrictions and modifications is incidental to the power to apply or adapt the law......... The modifications are to be made within the-framework of the Act and they cannot be such as to affect its identity or structure or the essential purpose to be served by it. The power to modify certainly involves a discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes. The other two Judges took an intermediate view. Mukherjea J. said that essential legislative functions cannot be delegated and at pages 982 to 984 he indicated what he meant: ,,The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct, and at page 1000- With the merits of the legislative policy, the Court of law has no concern. It is enough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed by sections 4, 5 and 6 of the Bihar and Orissa Municipal Act of 1922, cuts across one of it essential features touching a matter of policy and so is bad. The Act of 1922 applied to the whole of Bihar and Orissa and one of its essential features is that no municipality competent to tax shall be thrust upon a locality without giving its inhabitants a chance of being heard and of being give n an opportunity to object. Sections 4, 5 and 6 afford a statutory guarantee to that effect. Therefore, the Local Government is under a statutory duty imposed by the Act in mandatory terms to listen to the objections and take them into consideration before reaching a decision. In our opinion, this is a matter of policy, a policy imposed by the Legislature and embodied in sections 4, 5 and 6 of the Act. We are not able to brush this asideas negligible and it cannot, in our opinion, be left to an executive authority to tear up this guarantee in disregard of the Legislature's solemnly expressed mandate. To do so would be to change the policy of the law and that, the majority in the Delhi Laws Act case(1) say, cannot be done by a delegated authority. But the notification cannot be ultra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the previous decision, could be evaded by picking out parts of an Act only, with or without modification, in such a way as to effect an essential change in the Act as a whole. It follows that when a section of an Act is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Act regarded as a whole. Subject to that limitation we hold that section 3(1)(f) is intra vires, that is to say, we hold that any section or sections of the Bihar and Orissa Municipal Act of 1922 can be picked out and applied to Patna provided that does not effect any essential change in the Act or alter its policy. The notification of 23rd April, 1951 does, in our opinion, effect a radical change in the policy of the Act. (I) 5 I.A. 178. There fore, it travels beyond the authority which, in our judgment, section 3(1)(f) confers and consequently it is ultra vires, It is not necessary to examine the vire8 of section 5 of the Act of 1915 which was also impugned because no action taken under it has hurt the appellant and so he cannot question its vires. The result is that the appeal succeeds. We hold- (1) that sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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