TMI Blog2001 (2) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... t ). It was to come into force on such day the Government of Gujarat might by notification in official gazette appoint. The State Government then decided to bring the Act into force in 1989. The assent of His Excellency, the Governor of Gujarat was obtained on 20th February, 1986. The Government then decided to bring the Act into force from 15th August, 1989. The Act was then published in the Government Extra-ordinary Gazette dated 8th August, 1989, and the same has been brought into force from 15th August, 1989. As per Section 3 of the Act, the petitioner was entitled to the pension at the rate of Rs. 300/- per month and also the additional pension as per the Proviso to Section 3 of the Act. The petitioner then applied for the pension, but his application is yet kept pending and no final order awarding the pension is passed on the ground that Rules which are required to be framed under Section 5 of the Act are not framed. The petitioner was disgustedly shocked knowing such feet that though the Act was passed in 1984 and was brought into force from August 15, 1989 the Rules under Section 5 were even not framed till 1992. By a letter dated 17th November, 1990 he was informed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court can issue the direction to the Government to frame the Rules within specified time. The right to pension granted by the Legislature enacting the Act may not be palatable to some Section of the society or some persons because of a particular political philosophy or ideology they may have bred, but that cannot be a ground to mar the right granted. It is not that some thing strange or unusual has been done by the Legislature. Even the Members of the Parliament and Members of the Legislative Assemblies of different States in India get the pension under the different Acts passed by other State Legislatures or the Parliament. He then submitted what amount of pension is being paid in fact to different M.L.As. in different States which can be tabulized as under : It is further contended that large numbers of the Ex-M.L.As. belong to middle class or the poor class and their right to have the pension when denied or marred by the Government on one or the another pretext, it is now the most ripe time for the Court to play the effective role exercising the powers under Article 226 of the Constitution. The Executive cannot be allowed to defy the legislative mandate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court to grant approval to the proposals made by the Registrar General of the Supreme Court presumably on the direction of the Chief Justice of India. The third decision shown is in A. K. Roy v. Union of India, AIR 1982 SC 710, wherein it is laid down that a mandamus cannot be issued to the Central Government compelling it to bring the provisions of Section 3 of the 44th Amendment Act into force. It is further held that the President of India cannot be compelled to grant the approval to the proposal of the Registrar General of the Supreme Court. It is also made clear that there cannot be a doubt that the authority exercising legislative function cannot be directed to do a particular act. This authority also, therefore, lays down that Court cannot direct the Legislature to show that the authority who has to legislate under delegation cannot be compelled to frame the rules or enact a particular legislation. The Court cannot embark upon the realm of the legislative function of the Legislature. The Legislature is free, what law is to be enacted when and how and when the same should be brought into force and to what extent and relating to what area. The last decision shown to me is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not to a particular area, while in case of Delegated Legislation, if the delegate fails to carry out the duty and frustrate the object or improperly exercises the discretion conferred, the remedy by way of judicial review is certainly available, and the Court in that case can direct the delegate, may be the Executive, to frame the rules and esteem the mandate of the Legislature. In this case, the power to frame the rule is no doubt given to the Executive vide Section 5, but it is a Delegated Legislation and not a Conditional Legislation, and therefore, it would be open to the Court to issue the writ of mandamus directing the Government (Executive) to frame the rules. 6. Whether the Court can direct the Government, i.e., Executive to frame the Rules if the said function is assigned by the Legislature to it (Executive) passing a particular Act is the point that arises for consideration. Under the Constitution, three organs of the Government, namely (1) Executive, (2) Legislature, and (3) Judiciary are formed vide Parts V VI for the Union and the State respectively, wherein their working spheres are well defined. All the three organs of the Government have to function harmonio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act already passed and brought into force is being defeated or frustrated by the inaction on the part of the Executive to carry out the mandate of the Legislature because the will of the people expressed through the Act or Statute cannot be pooh-poohed and thereby the whole democratic structure cannot be allowed to be shattered and battered. It may be stated that if the Act is not at all enacted, or not brought into force after enacting the same, the Court cannot direct to enact the Act or bring the Act into force. 7. However, the interference of the Court in legislative functions when would be within the constitutional powers or justified has to be elucidated. The Legislature cannot in any case confer its essential functions which have been entrusted to it by the Constitution, namely what the law should be, power to repeal the law or make it inoperative or power to modify the Act in its essential particulars. It cannot confer unguided and uncanalised powers for the application of the Act. A Legislature cannot however foresee and provide for all the future contingencies owing to the challenges of the complex socio-economic problems. The function of the State is to secure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmine is Conditional and not Delegated Legislation and will be valid unless there is in the Constitutional Act any limitation on its power to enact such a Legislation. The Legislation may be 'Conditional' on the use of particular powers or on the exercise of a limited discretion entrusted by the Legislature to an external authority may be the Executive. An incomplete legislation, living on an external authority to enlarge the area within which a law actually in operation is to apply, is a Conditional Legislation . Such Legislation comes under a separate category being different from the Delegated Legislation. 9. The power of delegation is a constituent element of the legislative power as a whole. As stated above, in modern times, the Legislature enacting several laws has to meet the challenges of complex socio-economic problem. For the said purpose, subsidiary or ancillary powers are required to be delegated for carrying out the policy and principles laid down in the Act. The Legislature, therefore, cannot delegate its essential legislative function in any case. It must lay down the legislative policy and principles and afford guidance for carrying out said policy b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is made clear by the Supreme Court in Hamdard Dawakhana (Wakf) Lal Kuan, Delhi Anr. v. Union of India, 1960 (2) SCR 671 : AIR 1960 SC 554. In short, therefore, in case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority is the power to determine according to its own judgment whether or not those conditions are fulfilled; in case of delegated legislation proper some portion of legislative power of the Legislature is delegated to the outside authority may be the Executive in that the Legislature though competent to perform both the essential and ancillary legislature functions performs only the former and parts with the latter, i.e., the ancillary function of laying down details in favour of another for executing the policy of the statute enacted; the distinction between me two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is therefore, not open to attack on the ground of excessive delegation, delegated legislation proper does confer some legislative power on some outside authority and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the President or Vice-President of India or is appointed to the office of the Governor of any State or the Administrator of any Union Territory; or (b) becomes a member of the Council of state or the House of the People or any Legislative Assembly of a State or Union Territory or any Legislative Council of a State; or (c) is employed on a salary under the Central Government or any State Government, or any Corporation owned or controlled by the Central Government or any State Government, or any local authority or otherwise receives any remuneration from such Government, Corporation or local authority; such person shall not be entitled to any pension under Section 3 for the period during which he continues to hold such office or continues as such member, or is so employed, or continues to receive such remuneration : Provided that, where the salary payable to such person for holding such office or being such member or being so employed, or where the remuneration referred to in clause (c) paid to such person, is less than the pension payable to him under Section 3, such person shall be entitled to receive only the balance as pension under that Section. (2) Where any pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment (Executive) pension shall be paid. Section 3 makes it clear that even if the Rules are not framed, the pension has to be paid at the rate mentioned therein. In other words, the operation of Section 3 is not made subject to the Rules that may be framed by the Government. Even the Rules are not framed and the applications for getting the pension are received from the Ex-M.L.As., the Government (Executive) has to consider those applications keeping Section 3 in mind because vide Section 3, the Legislature has laid down the policy and principles indicating what should be paid and when the same is kept in abeyance. In view of the fact, the delegation in the case on hand cannot be said to be a 'Conditional Delegation', but a 'Delegated Legislation'. When that is so, it is open to the High Court to direct the Government to frame the Rules that may be found just, proper, adequate and necessary. In the aforesaid decisions cited by the learned Government Pleader, what appears when the same are perused with finicky details is that in those cases there was 'Conditional Delegation', and therefore, the Apex Court held that the Court cannot direct the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 89. Till the hearing of this application, the Rules are not framed. By now, more than 11 years have rolled by, but the State Government has taken no action to further the object and purpose of the Act and esteem the right acquired by the petitioner and other Ex-M.L.As. by framing the Rules under Section 5. No good cause is assigned for such inaction. By such delayed inertness or omission, the Government has not only marred the right of the M.L.As. and made the Act non-est, but it has also pooh-poohed the Rule of law, democratic values and the Constitution. To put it differently, by inaction the Executive has bred autocracy leading to injustice and gradually gnawing at and nibbling out the Democratic system and commendable Constitution we have adopted for common good. The abdication of the Rule making function for indefinite time misconstruing the word may appearing in Section 5, is for the aforesaid reason, required to be curbed and set right issuing appropriate direction. The contention of Mr. A. D. Oza, the Government Pleader does not gain a ground to stand upon. 15. Whether the Government should be directed to give pension to the Ex-M.L.As. and the petitioner is the next qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly improper on the part of the Government if the payment of pension is withheld solely on the ground that the Rules under Section 5 are not framed. 16. In the case on hand, issuing the Notification on 8th August, 1989 the Act is brought into force from 15th August, 1989. Vide Section 5, Legislature has assigned the function of framing of the Rules to the Executive, and till today though more than 11 years have passed, Rules are not framed. No reason is assigned as to why the Rules are not framed. It seems that under the guise of 'no Rules', the Government wants to avoid the payment of pension, defy the mandate of the Legislature and impair the right acquired by the Ex-M.L.As. When this is the case and the whole object of the Act is being pooh-poohed amounting to disregard to the mandate of the Legislature, the Court cannot afford to sit in the ivory tower of isolation. In that case, it would be just to give necessary direction to the Government to frame the Rules. On another count also such direction can be given. As stated above, the Executive has to carry out the mandate of the Legislature expressed through the Statutes and Acts and if that mandate is disregarded or ig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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