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TMI Blog1955 (10) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ns were called for on or 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise 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have" effect until two years have elapsed from the date on which the proclamation ceases to have effect, unless sooner repealed or re-enacted by Act of the appropriate Legislature, and any reference in this Act to Provincial Acts, Provincial laws, or Acts or laws of a provincial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 Act in the Provincial Legislature but not SO as to affect any pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the exercise of the discretion of the Governor during the state of proclamation and that, under the Constitution, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incial 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, which adapt or modify any law so as to alter the manner in which, the authority by which or the law under or in accordance with which any powers are exercisable, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 fourteen days before the Parliament or the Legislature of a Part A State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications as Parliament or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 Fourteen days before each House, of Parliament or the house or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 to be laid before each House of Parliament. (2) The reports of the Comptroller and Auditor General of India relating to the accounts of a State shall be submitted to the Governor or Rajpramukh of the State, who shall cause them to be laid before the Legislature of the State. Article 213(2) : An Ordinance promulgated u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure 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 the draft, no further proceedings are to be taken thereon. 18. C. K. Allen in his book "Law and Orders" at 'page 108' discusses the effect of the failure to lay the rules before the Parliament. He gives an incident that happened during the War. Pursuant to the powers given to the Government under the Fire Services (Emergency Provisions) Act, 1941, twenty thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, after describing the different phraseology used by the Parliament for providing a measure of control over delegated legislation, the learned author proceeds to state: There is clearly no rational principle affecting the treatment of different cases and government have shown great reluctance to accord effective control. 22. The author does not indicate his view on the question of the validity of the rule if it is not laid be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. As often as not, the non-observance of the rules happens more out of mistake than out of the deliberation. The Legislature can if it chooses, take necessary action against the Minister or other officer concerned. 25. The question was discussed in 65 Law Quarterly Review at page 439 thus: If an Act of Parliament provides that regulations made under the Act shall be laid before Parliament as soon as possible and shall be subject to disapproval is this provision mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic 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 shall be expressed to be made by the Governor-General in Council 'shall' be expressed to be made by the Governor-General in Council and shall be signed by a Secretary to the Government of India", the Federal Court in 'J. K. Gas Plant Manufacturing Co., Ltd. v. Emperor', AIR 1947 FC 33 (C) was not prepared to imply a prohibition to allow validity to orders of the Governor-General in Council otherwise than as provided in that sub-section and construed the word 'shall&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 accused was convicted of delivering an address in the park not in accordance with the rules. The Court of Queen's Bench held that S. 4 of the Regulations, together with the rules if made, took effect one month after the passing of the Act and S. 9 imposed a condition subsequent by which any rule disapproved of by either House of Parliament was not to be enforced after such disapproval. The conviction was held good as, according to the 'earned Judges, the rule was in force and had not been disapproved by the Parliame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Chopra J. at page 102 says: The language and purpose of its provisions make me think that the sub-article is meant to be a directory one. The regulations are only to be laid before the House for fourteen days as soon as practicable after they are made. They are not to be formally approved by the House, but they are to be subject to any modifications the House may choose to make during the session in which they are so laid. The use of the word 'shall' is not very much material. Art. 166(1) also uses the word 'shall' while requiring th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or regulations made by the delegated authority to be laid before the Parliament. But the statutory provisions made in the different Acts with regard to the laying of delegated legislation before the Parliament adopted different phraseology leading to different results. A correct summary of the different modes of phraseology adopted by the Parliament has been given at page 277 of Craies on Statute Law which we have already extracted! supra. The following briefly are the principal kinds of statutory instruments (1) those which are subject to negative resolution, (2) those which are subject to affirmative r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 recently adopted the democratic constitution, there is greater reason that Parliamentary control should be more effective than in England where Parliamentary institutions have been in existence for a long time. This defect perhaps may be cured by the Indian Parliament or the Legislature, as the case may be, making a law similar to the Statutory Instruments Act, 1946 made in England prescribing definitely the conditions, the period and the legal effect of the laying of the rules before the Parliament or the Legislature. 39. Bearing in view the aforesaid principles, we shall proceed to consider the scope of S. 133 of the Act. Sub-section (1) prescribes that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government, we cannot say that the Legislature has in any way abdicated its functions, in effect, the Legislature had substantially legislated on the subject and left the nomination of the person to the Government. 41. The cases cited at the Bar do not really help us in considering the validity of the aforesaid provision. The scope and the limits of delegation of legislative powers have been elaborately considered by the Supreme Court in In re: Art. 143. Constitution of India and Delhi Laws Act H912) etc, AIR 1951 SC 332 (I). Their Lordships pointed out that the Legislature must retain in in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by the Provincial Government contravene the aforesaid principles. Under S. 44(5) the Legislature does not purport to abdicate any of its functions. The Act clearly and definitely prescribed the powers to be exercised by the Regional Transport Authority. It authorised them to delegate such powers to such authority as prescribed by the rules. The Government under the rule-making power only nominates the authority to whom the prescribed power can be delegated. Therefore, there is no abdication on the part of the Legislature of its legislative functions. Nor is there any justification for the contention that the Regional Transport Authority is suo motu delegating its judicial functions - for the purpose of this argument we assume that it is exercising judicial functi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to use one power, to make a law upon a subject which is beyond power. 47. Lord Atkin in - 'Gallagher v. Lynn', 1937 AC 863 (N), restates the law on the subject as follows : It is well established that you are to look at the true nature and character of the legislation - 'Charles Russell v. The Queen', 1382-7 AC 829 (0) 'the pith and substance' of the legislation. If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field. The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field. Nor are you to look only at the object of the legislator. An Act may have a perfectly la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 the punishment for nonpayment are all regulated by it. Rule 160-C does not purport to trench upon any of the provisions of the said Act. It does not provide for imposition of the tax, the collection of the tax or for punishment for non-payment. The punishment may have a wide connotation and may take in a disqualification from office or from the pursuits of a lawful avocation within its fold. See - 'Cummings v. The State of Missouri', (1871) 18 Law Ed 357 (R). This rule does not in terms impose any punishment for non-payment of tax. As a part of the general scheme of control, the rule-making authority framed this rule presumably with a view to satisfy itself that the owner of the vehicle concerned has paid all the taxes pertaining to the vehicle though under different Act so that the service which is run in the interests of the public may not be disturbed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 bodies to maintain roads, to facilitate motor traffic and also to meet the costs incurred by the Provincial Government in exercising their administrative functions in regard to the control of motor vehicles in the province. The tax collected under the Motor Vehicles Taxation Act is, therefore, not an extraneous circumstance unconnected with the control of motor vehicles in the State. If the tax is not collected the Provincial Government, who exercises administrative control, may not have sufficient funds to effectively control the traffic in motor vehicles. If the tax is not paid, the roads on which the motor vehicles ply may not be kept in good condition. If the tax is not paid, there is every likelihood of the motor vehicles being attached and sold under the Motor Vehicles Taxation Act and will not be available for public use. To have a continuous and effective motor service it is necessary that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 licence, to refuse the licence for a person guilty of such an act. 54. The learned Judge did not think that it was an unreasonable restriction on the petitioner' right to carry on business. This matter was taken on appeal and Rajamannar C. J. and Rajagopala Ayyangar J. in - 'Rasipuram Union Motor Service Ltd. v. State of Madras', (S) AIR 1954 Mad 205 (U) confirmed the judgment of Govinda Menon J. The learned Judges held that the Regional Transport Authority should refuse to give the preference for renewal over applicants for new permits, to a person who has persistently broken one of the conditions of the permit by plying the vehicles without paying the taxes. Though the question raised now was not considered by the learned Judges, the conclusion of the learned Judges is consistent with the view that Rule 160-C is constitutionally valid. We, therefore, hold that the condition laid, down in Rule 160-C is not extraneous to the control of moto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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