TMI Blog1955 (10) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... r before 10-3-52. No representation objecting to the renewal was filed or received. The Secretary, Regional Transport Authority, Chittoor. in exercise of the powers delegated to him, refused to renew the permit on the ground that the history-sheet of the operator was bad and that he plied the vehicle without paying tax for 38 days. The said two Writs were filed to quash that order and to direct the Regional Transport Authority to renew the permit in petitioner's favour. 3. Mr. Sreenivasamurthi, Learned Counsel for the petitioner, questioned the validity of R. 134-A of the Madras Motor Vehicles Rules empowering the Board to delegate its powers to the Secretary and R. 160-C prescribing the payment of tax due as a condition of every permit on various grounds. On the basis that the said rules are invalid, he argued that the Secretary of the Regional Transport Authority had no power to refuse to renew the permit and that he also acted illegally in refusing it on the ground that no tax under the provisions of the Act was paid. We shall now proceed to consider the contentions raised by the Learned Counsel seriatim. 4. The first contention is that the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make laws, any law made by him in the exercise of that power shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the proclamation ceases to have effect, unless sooner repealed or re-enacted by Act of the appropriate Legislature, and any reference in this Act to Provincial Acts, Provincial laws, or Acts or laws of a provincial Legislature shall be construed as Including a reference to such a law. (5) The functions of the Governor under this section shall be exercised by him in his discretion and no proclamation shall be made by a Governor under this section without the concurrence of the Governor-General in his discretion. 5. Pursuant to the powers given to the Governor under this section, he issued a proclamation on 30-10-1939. The relevant portion of that proclamation reads : Now, therefore, in the exercise of the powers conferred by S. 93 of the Act and with the concurrence of the Governor-General, the Governor by this proclamation (a) declares that all his functions under the Act shall be exercised by him in his discretion: (b) assumes to himself all powers vested by or under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Proclamation, took over the powers of the Executive Government, Was the person authorised to - administer the executive government in the province during the period of the state of proclamation. The rules therefore were made by the Governor in exercise of the powers of the executive government and not in exercise of the powers of the Provincial Legislature. Sub-section (4) of S. 93 of the Government of India Act limiting the life of the laws made by the Governor to a period of two years from the date on which the proclamation ceases to have effect in terms apply only to the laws made by the Governor in exercise of the powers of the Provincial Legislature vested in him. As the aforesaid rules were made by the Governor in exercise of the powers of the Executive Government, S. 93(4) has no application and therefore those rules will continue to have force unless they are repealed or otherwise cease to have any effect. 8. It is then said that, after coming into force of the Constitution, the said rules ceased to have any effect as they were repugnant to the provisions of the Constitution. To state it differently, the argument is that the rules were framed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority or person authorised at the relevant date to administer executive government in the Province in question. 10. Under that clause Provincial Government shall mean as respects anything done before the commencement of this Constitution the authority or person authorised at the relevant date to administer the executive government in the province in question. 11. Para 4(1) and para 17 of the Adaptation of Laws Order, 1950, read; Para 4(1) : Whenever an expression mentioned in col. 1 of the Table hereunder printed occurs otherwise than in a title or preamble (or in a citation or description of an enactment) in an existing Central or Provincial law, whether an Act, Ordinance or Regulation mentioned in the schedules to this Order or not, then unless that expression is by this Order expressly directed to be otherwise adapted or modified, or to stand unmodified, or to be omitted, there shall be substituted therefor the expression set opposite to it in col. 2 of the said table, and there shall also be made in any sentence in which the expression occurs such consequential amendments as the rules of grammar may require. Para 17 : The provisions of this order, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and if necessary the Court can adapt the rules as made by the authority substituted for the Governor. Though the rules were made by the Governor in the exercise of his discretion, the Court can adapt the rules as if made by the State Government under S. 68 of the Act. If so, under Art. 372 of the Constitution of India, the rules being laws in force before the commencement of the Constitution, continue to be in force till altered by a competent authority. 13. Learned Counsel's next contention is that Rule 134-A empowering the Regional Transport Authority to delegate its functions to the Secretary is invalid inasmuch as it was not laid for not less than 14 days before the Legislature of the Madras State. Section 133 (1) reads : Every power to make rules given by this Act is subject to the condition of the rules being made after previous publication. (2) All rules made under this Act shall be published in the official Gazette and shall unless some later date is appointed, come into force on the date of such publication. (3) All rules made under this Act by the Central Government or by any Provincial Government shall be laid for not less than fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untry Planning Act, 1947. (iii) The rules may be directed to lie for a specified time subject to a prayer for annulment. Subject to this the rules become effective immediately. This is called the method of Negative Resolution and is most usually employed. It appears to be the method contemplated by the Statutory Instrument Act, 1946, S. 5. (iv) Rules to lapse unless approved. This is the method of Affirmative Resolution. For example, the orders of the Board of Trade under the Safeguarding of Industries Act 1921. A good example is - 'Metcalfe v. Cox', 1895 AC 328 (A), (Infra. P. 289.) (v) Sometimes it is directed that orders shall be of no effect unless they are approved by resolution of each House of Parliament. See for an example the Town and Country Planning, Development Charge Exemptions Regulations 1950 (S. 1.1950 No. 1233) made under S. 69 of the Town and Country Planning Act, 1947. In India also different phraseology is used in different Acts. Article 320(5) of the Constitution of India says : All regulations made under the Proviso to Cl. (3) by the President or the Governor or Rajpramukh of a State shall be laid for not less than Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after making of the order unless within that period resolution's approving the making of the order are passed by both Houses of Parliament. Article 123 of the Constitution of India reads: If at any time, except when both Houses of Parliament are in Session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require. (2) An ordinance promulgated under this Article shall have the same force and effect as an Act of Parliament but every such Ordinance (a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the re-assembly of Parliament or if before the expiration of that period resolutions disapproving it are passed by both Houses upon the passing of the second of those resolutions; and (b) may be withdrawn at any time by the President. * * * * Article 151(1) of the Constitution runs : The reports of the Comptroller and Auditor General of India relating to the accounts of the Union shall be submitted to the President, who shall cause them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Commons, or sometimes, by both Houses; others become effective unless a resolution against them is moved in one or other of the Houses within a specified time. But these methods of Parliamentary control are not very real. 17. After discussing how parliamentary control over delegated legislation has become ineffective, the author points out that, the procedure for laying orders before Parliament was considerably simplified by the Statutory Instrument Act, 1946. The gist of that Act is given at 'page 233' thus : The procedure for laying orders before Parliament was considerably simplified by the Statutory Instruments Act, 1946, which gave effect to some of the earlier recommendations by providing that where an order is subject to annulment by resolution of either House, it shall be laid before both Houses for 40 days and if either House within that period passes a resolution praying for annulment no further proceedings shall be taken on the other and His Majesty may by Order in Council revoke it. A like provision was made for the case of orders required to be laid in draft before the House and, if there is a resolution within 40 days of the laying of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-compliance is to he, the matter is plain; but in many cases it merely gives its command and says nothing about the consequences of disobedience. The Courts then have to look at the general intendment of the Section, and often of the whole statute, and although there can be no invariable rule, the general principle of interpretation is well stated by Maxwell. Where the prescriptions of a statute relate to a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without promoting the essential aims of the Legislature such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or in other words, as directory only. 20. The author, therefore, seems to indicate that where the statute itself does not expressly indicate the effect of non-compliance with the rule to lay such as in the present case, it is directory only and its non-compliance does not invalidate the rule. 21. In Anson's 'Law and Custom of the Constitution' Vol II Part I, at p. 255, aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invalidate transactions. The point at any rate, seems to be settled in favour of this view by S. 4(1) of the Statutory Instruments Act, which provides that where any statutory instrument is required to be laid before Parliament after being made, a copy of the instrument, shall be, laid before each House of Parliament and shall so be laid before the instrument comes into operation. There is much to be said for the view expressed by this learned author, for the object of the rule to lay is to have an effective legislative control over delegated legislation and this object may be defeated if the non-observance of the condition has not the effect of invalidating the rule. But at the same time, if the dereliction of duty by the concerned Minister or any other officer invalidates a statutory rule, which has already come into force, it may affect the rights of the public or invalidate transactions that have taken place on the basis of that rule. The Legislature assumes that the executive will discharge the duties laid upon it strictly and there is also no reason to assume that the executive deliberately will withhold the laying of the rules on the table of the Legislature. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this article also to some extent supports the view that the rule is mandatory. 27. Before adverting to the cases having a direct bearing on the question raised, it may be convenient at this stage to notice the law on the question of the interpretation of the word 'shall' in the section under scrutiny. Maxwell in his book on The Interpretation of Statutes states at page 381: On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed or in other words as directory only. The neglect of them may be penal indeed, but it does not affect the validity of the act done in disregard of them. 28. In construing the word 'shall' in S. 40(1), Government of India Act whereunder all orders and other proceedings of the Governor-General in Council ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injustice or inconvenience will result to persons who have no control over those exercising their duty without promoting the essential aim of the Legislature. 30. The aforesaid principles afford a reasonable guidance for construing the provisions of S. 133 of the Act. 31. We shall now consider the relevant case law on the subject. In 'Bailey v. Williamson' (1873) 8 QB 118 (E) the question arose whether the regulations made under the Parks Regulation Act were in force at the time the accused in that case committed the offence. Section 9 of that Act says that any rule made in pursuance of the first schedule to this Act shall be forthwith laid before both Houses of Parliament, if Parliament be sitting or If not, then within three weeks after beginning of the then next ensuing session of Parliament and if any such rules shall be disapproved by either House of Parliament within one month after the same shall have been so laid before Parliament, such rules, or such parts thereof as shall be disapproved of, shall not be enforced. The Act was passed on 27-6-1872 and published on the 30th of September. Parliament was not then sitting. In November the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fact been complied with. 34. It is true that, in that case, the learned Judges held that the, provisions of S. 101 had been substantially complied with. But the observation of Channel J. indicates that, where the rule only requires the laying of the rules before Parliament the said requirement is only directory. 35. In 1895 AC 328 (A), the question turned upon the interpretation of S. 20 of the Universities (Scotland) Act, 1889 whereunder all ordinances made by the Commissioners are to be published in the Edinburgh Gazette, laid before Parliament and submitted to the Queen-in-Council for approval and no such ordinance shall be effectual until it shall have been so published, laid before Parliament and approved by Her Majesty-in-Council , the condition of laying before Parliament was clearly made a condition precedent for the coming into force of the rules. 36. This question arose in India in the High Court of Pepsu in 'Dalmer Singh v. State of Pepsu', AIR 1955 Pepsu 97 (G). Under Art. 320(5) of the Constitution, the regulations made are to be laid: before the House. In dealing with the question whether the requirement is directory or mandatory, Cho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or amendment. The word 'amendment' causes no difficulty, because I can conceive of even draft rules being amended, but the clause also speaks of repeal and that provision to my mind indicates conclusively that the regulations do not depend for their validity on being laid before the House and certainly do not depend on the Legislatures' approval. The word! 'repeal' implies and connotes that what is to be repealed is already law, for otherwise repealing could have no meaning and there could be no question of repeal at all. Even apart from the meaning suggested by the word 'repeal' it appears to me that in view of the limited character of the provision contained in cl. 5 limited in the sense that it is confined to a direction for laying the regulation before the House the clause can be construed only as a provision of a directory character. We respectfully agree with the learned Judge's observations. 38. The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or legislature to control delegated legislation. That control is sought to be effected by directing the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in public interests, the dereliction of the duty by the Minister or other officer concerned in not following the procedure should not be made to affect the members of the public governed by the rules. It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rule shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated. But the Parliament or the Legislature, as the case may be if they intended to make that rule mandatory, they would have clearly mentioned the legal consequences of its non-compliance as they have done in other cases. In such a case, the Parliament may assume that the Minister discharges the duty entrusted to him and ordinarily, except perhaps by over-sight or mistake, there is no reason to apprehend that a responsible Minister or his subordinates will neglect the duty cast on them. If there is any such dereliction of duty, Parliament or the Legislature can always take appropriate action against the Minister or the officer concerned. We have come to this conclusion rather reluctantly as in our country, which has recentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage carriage permit in cases where no objection or representations are received with reference to S. 57 (3) of the Act. Section 44(5) of the Act empowers the Regional Transport Authority, if authorised in this behalf by rules made under S. 68, to delegate such of its powers and functions to such authority or person and subject to such restrictions, limitations and conditions as may be prescribed by the said rules. The Government in exercise of the rule making power conferred under S. 68 prescribed rules nominating the authority to whom the Regional Transport Authority can delegate their functions under S. 47. It is, therefore, not a case of an authority on whom the Legislature conferred certain judicial powers delegating the said powers to another. The Legislature itself conferred certain powers on the Regional Transport Authority and also authorised them to delegate the said powers to another nominated by the Government. If the Legislature has conferred judicial powers on A or B, it cannot be contended that the said conferment is invalid. If, instead of nominating B, it authorises A to delegate his function to B or to a person nominated', by the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider the proceedings laid before him and decide personally whether they ought to be carried into effect. Such a power he cannot delegate.... And this because he is the person and the only person to whom has been committed the important judicial power of finally determining upon an examination of the whole proceedings of a Court martial, whether an officer holding a commission in the Army of the United States shall be dismissed from service as a punishment for an offence with which he has been charged and for which he has been tried. 44. This judgment does not say anything more than the obvious fact that a Judge on whom judicial power is conferred cannot delegate his functions to a 3rd party. It is not necessary to multiply decisions. The Legislature cannot abdicate its functions and delegate them to others. But it can always delegate its power to determine some fact or state of things upon which the operation of the law made would depend. It is also clear that, if the Legislature confers judicial power upon a specified person, he cannot delegate that function to another. But, in this case, neither the provisions of S. 44 (5) of the Act nor R. 134/A made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 of the Government list and that the mere fact that, in making the law, it incidentally encroached upon the State field does not make the law invalid. 46. In every Federal structure, there is bound to be a conflict between two legislative bodies operating in different fields. This question, therefore, necessarily arose on many an occasion in India and also elsewhere and the problem was satisfactorily solved though there was always bound to be difficulty in applying the solution to the facts of each case. The following passage from the judgment of Latharm C. J. in - 'Bank of New South Wales v. Commonwealth', 76 Comm-W LR 1 at p. 187 (M), clearly summarises the law on the subject at page 187 thus : Thus when a question arises as to the validity of legislation it is the duty of the Court to determine what is the actual operation of the law in question in creating, changing, regulating or abolishing rights, duties, powers or privileges, and then to consider whether that which the enactment does fall in substance within the relevant authorised subject matter, or whether it touches it only incidentally, or whether it is really an endeavour, by purporting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved by the Judicial Committee whereby the impugned statute is examined to ascertain its 'pith and substance' or its 'true nature and character' for the purpose of determining whether it is legislation with respect to matters in this list on in that in my opinion this rule of interpretation is equally applicable to the Indian Constitution Act. 49. Rajamannar C. J. and Venkatarama Ayyar J. following the aforesaid principles held in - 'A. M. S. S. V. M. and Co. v. State of Madras', AIR 1954 Mad 291 (Q), that if a law is in respect of a subject within exclusive jurisdiction of the State Legislature, it is valid even though, in the result, it might trench incidentally on subjects beyond its competence. The short question, therefore, is what is the 'pith and substance' or 'the true nature and character' of R. 160-C of the Madras Motor Vehicles Rules read with other provisions of the Act and the rules framed thereunder. The Madras Motor Vehicles Taxation Act, 1931, was enacted to regulate and control the plying of motor vehicles in the interest of the public. The taxation of motor vehicles, the mode oil collecting the tax and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State from making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. The restriction now imposed is that the permit holder shall not use the vehicle on the road unless the tax due in respect of such vehicle has been paid in accordance with the provisions of the Motor Vehicles Taxation Act. The Motor Vehicles Taxation Act levied tolls on motor vehicles, presumably for the purpose of raising sufficient funds for keeping the roads in order. That Act also provides a machinery for the recovery of the tax payable by the owner of a vehicle. Under Section 7 of that Act, the defaulter is liable to fine. Under Section 9, the tax can also be recovered as if it is an arrear of land revenue i. e., the vehicle along with his other properties could be attached and sold under the Revenue Recovery Act under Section 10 of the Act. The amount collected by way of taxes is distributed among the various local bodies the Provincial Government, having regard to the principles laid down in the section. The aforesaid sections, therefore, clearly show that the amount was collected to enable Local ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In the aforesaid circumstances, I must hold that the cancellation of the permits after the entire arrears were paid is not a reasonable restriction on the petitioner's right to do business, much less is it in the interests of the general public. 52. Having regard to the aforesaid facts, I held that the cancellation of the permit was an unreasonable restriction on the right of the petitioner therein to carry on his business. I do not either expressly or by necessary implication decide that R. 160 (c) is ex facie an unreasonable restriction on the right of a permit holder to carry on his business. That judgment, therefore, should be confined only to facts of that case. 53. Govinda Menon J. had considered a similar question in Writ Petn. Nos. 556 and 557 of 1952 (Andhra). (T). There, the renewal of the licences was refused on the ground that the vehicles had been plied during the several periods for which tax had not been paid and that such plying was deliberate and habitual. The learned Judge observed: Where a person who plies a motor bus without paying the tax is found out, it is certainly proper exercise of authority, in the matter of granting lic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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