TMI Blog1971 (11) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... D. Work Charge Staff Consumers Co-operative Society Ltd. (Respondent No. 1) was referred to the Registrar of Co-operative Societies (Respondent No. 2). The dispute was decided by the award of the Registrar made on 12-10-66 directing the petitioner to pay to the respondent No. 1 ₹ 5276.84 as principal plus costs of ₹ 527.00 together with interest at the rate of 8% per annum until realisation of the principal sum of ₹ 5276.84. (2) The validity of this award has been challenged by this petition. Learned Counsel for the petitioner Shri Ramesh Chandra confined his G argument only to the following grounds of challenge viz:- (A)the Co-operative Societies Act, 1912 already applied to Delhi and, Therefore the Central Government had no power to extend the Bombay Co-operative Societies Act, 1925 to Delhi in 1949 under section 7 of the Delhi Laws Act, 1912; (B)the notification dated 8-1-1949 extending the Bombay Co- H operative Societies Act, 1925 to Delhi modified Section 73 of the said Act stating that the Co-operative Societies Act, 1912 in so far as it applied to Delhi, was repealed. The Central Government had no power to repeal the central act while extending th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o exhaust the statutory remedies before filing the writ petition. This is what he did and rightly so. Of course if the award had been favorable to him, he would have had no occasion to file this writ petition. It is only because the award has gone against him that he had to do so. But there is nothing blame worthy in this conduct and it does not by itself disentitle him to relief by way of writ petition, if he has otherwise a good case on merits. An appeal and then a revision filed against the award were ultimately disposed of by the Co-operative Tribunal (Respondent No. 4) only in January 1968. The petition was filed in July, 1968 and was, Therefore, not unduly delayed. (5) First two preliminary objections have. thus no force but the third preliminary objection is partly well founded. The dispute was referred to arbitration by the resolution of the respondent No. 1 dated 25-11-65. The notice under rule 35 was issued by the Registrar to the petitioner on 27-3-66. The petitioner says he received the notice on 6th April, 1966. On 16th April, 1966, he wrote to the Respondent No. 1 that he wanted the dispute to be referred to the arbitration of 3 arbitrators. He had to do so accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord to be corrected by this court in exercise of the writ jurisdiction under Articles 226 and 227 of the Constitution. Only in this respect, the 4th contention of the petitioner included in ground No. (d) urged by his learned counsel is, Therefore, allowed. (7) We shall now consider the contentions urged by the petitioner against the validity of the extension of the Bombay Co-operative Societies Act to Delhi. (A)The authority of the Central Government to apply the Bombay Act to Delhi was based on Section 7 of the Delhi Laws Act, 1912 which is as follows :- The provincial Government may, by notification in the official gazette, extend with such restrictions and modifications as it thinks fit, to die province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification. (8) In 1912 when the Delhi Laws Act was passed local legislatures consisting of legislative councils of the Governors and Lt. Governors of the provinces such as Bombay, Madras, Bengal, North West provinces (U.P.) and the Punjab were functioning with legislative powers confined to the provinces. But no such legislative council was set up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate that the legislature intended to put any further restriction on this power. Contention (a) of the petitioner is that it is only when there is no law at all in the Chief Commissioner's province on a particular subject that the Central Government can exercise its power under section 7 of the Delhi Laws Act 1912 to extend a, provincial law to Delhi. The intention of the legislature in enacting section 7 was to save the central legislature, the time and trouble involved in enacting such laws for application to the Chief Commissioner's province as were already in force in the Governor's province. (Smt. Marchi Devi v. Mathu Ram AIR1969Delhi267 ). There is nothing in the language of section 7 to show that an enactment in force in a province could not be extended there under to Delhi if some other law already existed in Delhi on the same subject. If the legislature had intended to so restrict the power, it would have said so. For instance, the spheres of legislative power assigned to parliament and state legislatures have been defined in Article 246 of the Constitution. Section 7 does not follow the pattern of Article 246 and does not say that enactment relating to particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Legislative policy by the Executive. Lastly, even before the Delhi Laws Act, 1912 was enacted the laws made by the Central Legislature were in force in the Governor's provinces side by side with the laws made by the provincial legislatures. In case of any repugnancy between the two or any parts of the two, the one which was competent to legislate on the particular subject and in the particular area or who had primacy over the other in case of conflict would have prevailed. For instance under Article 246(2) of the Constitution both the Parliament and the State legislatures have powers to legislate on the subjects enumerated in list Iii in the 7th Schedule of the Constitution. The state legislature is not prevented from making a law on a subject merely because Parliament has already legislated on it. The State 'legislature would take care .to see that its law does not conflict with the law made by Parliament. If it does so, then the law made by Parliament would prevail. against the law made by the State legislature as provided in Article 254. In the same. way the provincial law extended to Delhi, if inconsistent with an existing law, would either prevail over it or give wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter a full consideration. Section 2. of the Union territories (Laws) Act, 1950 was in pari materia with section 7 of the Delhi Laws Act, 1912 in as much as the Union Territories (Laws) Act, 1950 was only an adaptation of the part C States (Laws) Act, 1950. The ratio of that decision is directly applicable to the present case. Contention (a), therefore. fails. (B)Unamended section 2 of, the Part C States (Laws) Act, 1950 after empowering the Central Government (which meant the Governor General Or the Governor General in Council as the case maybe in relation to anything, done before, the commencement of the Constitution in view of Section 3(viii);of the General Clauses Act 1897)to extend any enactment in force in a part A State had given it a further power in the following words:-- Provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than Central Act) which is for the time being applicable to that part C State. INRe Delhi Laws Act, 1912,1951 Scr 747 (-0 the Supreme Court held that the legislature could not validly delegate this latter power of repeal .lo the Government in as much as this would be surrendering legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s argument over-looks the essential distinction between J repeal made by the Central Government of the existing law in providing for the extension of a new law to Delhi and the repeal already made by the State Legislature in the provincial law which is extended by the Central Government to Delhi with suitable modifications. The former was held to be excessive delegation of legislative power to the Central Government. But the latter is the legislative power conferred on Central Government by section 7 of the Delhi Laws Act. This is why only the last part of section 2 of the part C States (Laws) Act 1950 was held to be void by the Supreme Court. For, it alone gave the executive power to repeal an existing law. On the other hand, the rest of section 2 of part C State (Laws) Act 1950 was held to be valid because it only enabled the Central Government to extend a law from a part A State to a part C State. The impugned notification does not repeal the Co-operative Societies Act 1912 while extending the Bombay Co-operative Societies Act 1925 to Delhi. Had it done so, it would have been invalid to that extent. On the contrary the notification merely extends the Bombay law to Delhi with sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Articles 73 and 77 of the Constitution was wide enough to cover all power and action which was neither judicial nor legislative. The making of subordinate legislation or issuing of a notification under a statute by the Government or an authority empowered to do so by the statute was not legislation in the same sense in which the making of an Act or an Ordinance is so. The executive capacity of the Government or the President to act under various statutes, is different from their legislative capacity to make laws, for instance, under Articles 123 and 357 of the Constitution. In making statutes and ordinances, the President act as legislature. But in acting under a statute he exercises executive power in the broad sense in as much as he is not making sovereign legislation in the exercise of legislative power given by the Constitution. No other procedure is laid down in the Constitution for issuing statutory notifications or statutory rules. Unless the petitioner can show that the Governor General was required to do so personally, the officers authorised under section 17(2) of the Government of India Act 1935 which included a Deputy Secretary to the Government of India could do so. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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