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K. Kishan Rao Vs. the Election Commissioner, Adilabad and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 274 of 1971
Judge
Reported inAIR1972AP312
ActsAndhra Pradesh Panchayat Samithis and Zilla Parishads Act, 1959 - Sections 69
AppellantK. Kishan Rao
RespondentThe Election Commissioner, Adilabad and ors.
Appellant AdvocateB.P. Jeevan Reddy, Adv.
Respondent AdvocateGovt. Pleader
Excerpt:
.....time to legislature to scrutinize rules and propose amendments to rules - held, prescribing period of laying down does conclude that rules would not come into force until period of laying down elapses. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of..........as the legislative assembly may make during the session in which they are so laid. after the rules are laid before the legislative assembly they may be altered or amended and it is then that the rules, as amended become effective. if no amendments are made the rules come into operation after the period of 14 days expires. even in this latter event the rules owe their efficacy to the tacit assent of the legislative assembly itself'.7. it is the aforesaid observation which is relied upon by the appellant in support of the argument advanced on him behalf. this observation was made in the context of the argument raised under art. 14 of the constitution of india that the discretion given to the government amounts to discrimination as no guidelines have been prescribed and there is no.....
Judgment:

Vaidya, J.

1. In this writ appeal, the question raised is the date on which the rules made under Section 69 of the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act, 1959 become applicable. Under sub-section (2) of this section all the rules made under S. 69 (1) shall as soon as may be after they are made, be laid for not less than fourteen days before both Houses of the State Legislature and shall be subject to such modifications, whether by way of repeal or amendment, as the State Legislature may make during the session in which they are so laid. The contention of the learned counsel for the appellant is that, by virtue of the provisions of sub-s. (2) of S. 69, the rules framed under the section do not become applicable immediately on their publication but only after a period of fourteen days elapses after they have been laid before both the Houses of the State Legislature.

2. The aforesaid question arises in the following circumstances. On 18th July 1970 the appellant was elected as the president of the Luxettipet Panchayat Samithi. The 2nd respondent before us filed O. P. No. 4 of 1970 on 1st August 1970 before the District Munsif, Luxettipet. According to the rules then in force, election petitions challenging the election of a President or a Vice-President under the Panchayat Samithis and Zilla Parishads Act had to be filed before a Subordinate Judge. In the district of Adilabad, there is no Subordinate Judge's Court. The Government issued G. O. Ms. No. 501 dated 2nd September, 1970 amending the rules in regard to the filing of election petitions and provided that in a district where there is no Subordinate Judge's Court, the District Munsif will be the Election Commissioner. It was further provided that an election petition to be presented to a District Munsif in respect of an election result declared prior to 2nd September 1970 shall be presented to the District Munsif within fifteen days from that date. The 2nd respondent thereafter filed O. P. No. 5 of 1970 on 16th September, 1970 before the District Munsif, Luxettipet. The Rules as framed laid before both the Houses of the State Legislature in the month the March 1971. The appellant filed W. P. No. 5573 of 1970 praying for a writ of prohibition. It was contended that G. O. Ms. No. 501 had not become enforceable on the date on which the 2nd respondent filed the election petition as, by virtue of the provisions of sub-section (2) of S. 69 the same G. O. would come into force only after the rules made are laid before both Houses of the State Legislature and a period of fourteen days elapses from such leaving down. The District Munsif, therefore, had no jurisdiction to entertain the petition.

3. Our learned brother, M. Krishna Rao, J., dismissed the writ petition following a Division Bench decisions of this Court in Madhava Rao v. State of Andhra Pradesh, ( (1967) 2 Andh WR 366) wherein the very provisions of Section 69 (2) of the Act were considered and it was held their publication. The learned counsel for the appellant relied upon the decision of the Supreme Court in the Re Kerala Education Bill, 1957. AIR 1958 SC 956, and argued that because of that decision, the rules would come into operation after the laying down period of fourteen days elapses. The learned Judge held that there was no conflict between the decisions of the Division Bench of this Court and the decision of the Supreme Court. In the result, as stated earlier, the writ petition was dismissed. Hence, this writ appeal.

4. In the writ appeal, it was argued by the learned counsel for the appellant that the decision of the Supreme Court in AIR 1958 SC 956 interprets the provisions of clause (37) of the Kerala Education Bill of 1957 which is practically identical with the provisions of Section 69, sub-section (2). In view of that decision, the decision of the Division Bench in Madhava Rao's case. (1967) 2 Andh WR 366 requires reconsideration.

5. Clause (37) of the Kerala Education Bill reads:------------

'All rules made under this Act shall be laid for not less than fourteen days before the Legislative Assembly as soon as possible after they are made and shall be subject to such modifications as the Legislative Assembly may make during the session in which they are so laid'.

6. The Supreme Court observed at page 975:-------------

'Under Clause 37 the rules have to be laid for not less than 14 days before the Legislative Assembly as soon as possible after they are made and are to be subject to such modifications as the Legislative Assembly may make during the session in which they are so laid. After the rules are laid before the Legislative Assembly they may be altered or amended and it is then that the rules, as amended become effective. If no amendments are made the rules come into operation after the period of 14 days expires. Even in this latter event the rules owe their efficacy to the tacit assent of the Legislative Assembly itself'.

7. It is the aforesaid observation which is relied upon by the appellant in support of the argument advanced on him behalf. This observation was made in the context of the argument raised under Art. 14 of the Constitution of India that the discretion given to the Government amounts to discrimination as no guidelines have been prescribed and there is no legislative control over the powers vested in the Government. Referring to this aspect, the Supreme Court on the same page observed:

'All that we need say is that apart from laying down a policy for the guidance of the Government in the matter of the exercise of powers conferred on it under the different provisions of the Bill including clause 36, the Kerala Legislature has by clause 15 and clause 37 provided further safeguards'.

8. The controversy before the Supreme Court did not at all relate to the date on which the rules made by the Government under the Bill would become applicable.

9. Sri Venkateswara Rao appearing for the Government Pleader brought to out notice another decision of the Supreme Court in Express Newspapers (P) Ltd. v. Union of India, : (1961)ILLJ339SC in which a decision by a majority of the Wage Board was challenged on the ground that there was no provision in the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 and be Rules providing for the same went beyond the Act and were therefore ultra vires Section 20 of the Working Journalists (Conditions of Service) and Miscellaneous Productions Act empowered the Central Government to make rules to carry out the purpose of the Act and to provide for all the matters enumerated in sub-section (2) of that section. Sub-section (3) provided that all rules made under this section shall, as soon as practicable after they are made, be laid before both Houses of Parliament. Rule 8 provided that every question considered at a meting of the Board was to be decided by a majority of the votes of the members present and voting and this rule was made by virtue of the power conferred under S. 20 of the Act. Refuting the argument advanced for invalidating the decision of the Wage Board, the learned Judges observed at page 635:-------------

'The rule was framed by the Central Government by virtue of the authority vested in it under Section 20 of the Act and was a piece of delegated legislation which if the rules were laid before both the Houses of Parliament in accordance with Section 20(3) of the Act acquired the force of law. After the publication of these rules, they became a part of the Act itself and any decision thereafter reached by the Wage Board by a majority as prescribed therein was a therefore lawful and could not be impeached in the manner suggested.:'

10. Relying on the aforesaid passage, it is argued on behalf of the Government that the rules come into force on their publication and not after they are laid before both the Houses of Parliament. Referring to the above passage, it is contended by Sri B. P. Jeevan Reddy, learned counsel for the appellant, that the rules do not acquire the force of law unless they are laid before both the Houses of Parliament. He, therefore, contended that the latter part of the passage extracted above, if read along with the first part, the only conclusion that can be reached is that if the rules are published after they are laid before both the House of Parliament, they would come into force and not before that. We may point out that in this decision of the Supreme Court also, the question involved was not the date on which the rules would come into force, but whether the rule was void or illegal as it went beyond the provisions of the Act.

11. Thus we see that in both the decisions of the Supreme Court the question about the date of applicability of the rules in cases where they are to be laid before the Legislature was not in dispute. The attention of the Supreme Court was not directed to the said problem. The observations in the aforesaid two cases are made in different contexts. In the case of Kerala Education Bill, AIR 1958 SC 956 it was made in the context of determining whether there was sufficient legislature control on the discretionary power vested in the Government. In : (1961)ILLJ339SC the observation is to refute the argument that Rule 8 was invalid as it went beyond the provisions of the Act. In AIR 1958 SC 956, the learned Judges observed that the rules become applicable only after a period for which they are laid before both the Houses of Legislature terminates whereas in the case of Express Newspaper Ltd., : (1961)ILLJ339SC , their Lordships have observed that they become applicable on their publication.

12. The learned counsel for the appellant brought to our notice the difference in the provisions of clause (37) of the Kerala Education Bill and S. 20, sub-section (3) of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955. His argument is that in the Working Journalists Act, there is a simple provision for laying the rules before both the Houses of Parliament whereas in the Kerala Education Bill, there was a specific provisions for laying the rules for a particular duration before the Legislature. he contends that because of the difference in the two provisions, a difference in the observations of the Supreme Court in the two cases has arisen. In our opinion, the difference in the provisions pointed out by the learned counsel for the appellant does not make any difference as we will show later. The fact remains that the question has not been decided by the Supreme Court as observed by Gopal Rao Ekbote, J., in Maram Subrahmanyam Stores v. State of Andhra Pradesh, (1969) 2 Andh WR 6 at p. 16:

'One has, however, to wait for a clearer and authoritative decision on this point from the Supreme Court.'

13. The 'laying' procedure has been evolved for controlling delegated legislation. There are various forms which give Legislature different degrees of control. Those forms are: (I) laying without further provision for control; (ii) laying with deferred operation; (iii) laying with immediate effect, but subject to annulment; (iv) laying in draft but subject to resolution that no further proceedings be taken; (v) laying in draft and requiring affirmative resolution; (vi) laying with operation deferred until approval given by affirmative resolution; and (vii) laying with immediate effect but requiring affirmative resolution as a condition for continuance. In India, there were generally four types of provisions contained in the enabling Acts:

'(1) those which required mere publication of rules in the Official Gazette; (2) those which required such publication and laying on the Table; (3) those which in addition to preceding two conditions allowed modification by Parliament, and (4) those which required the laying of rules for a specified period before their publication in the Gazette. Only one statute answered the description in the fourth category, viz., Section 20 of the Estate Duty Act, 1953, which gave power to the Central Board of Revenue to make rules in respect of controlled companies generally by notification in the Gazette, required all such rules to be laid before the Houses of the People for not less than 15 days before the date of their final publication. But these rules are not subjected to any further parliamentary action' (Vide Delegated Legislation in India at p. 184 prepared by the Indian Law Institute, New Delhi).'.

14. Section 28(2) of the Mines and Minerals (Regulation and Development) Act. 1957 provided that the rules made with reference to clause (c) of sub-section (2) of S.16 shall not come into force until they have been approved, whether with or without modifications by each House of Parliament. The provisions of Section 20 of the Estate Duty Act show that the Legislature, when it intended that the rules should be published after they are laid before the House of People for a particular period, said so in so many words in the Act itself. Section 28(2) of the Mines and Minerals (regulation and Development) Act shows that the rules would not come into force until they were approved whether with or without modifications, by each house of Parliament. The aforesaid two examples show that whenever the Legislature intended from a particular date or on the happening of a particular event, they provided for the same in so many words in the parent Act. In the instant case, we do not find any such provision. The only provisions is that the rules may be laid before both the Houses of the State Legislature for a period of fourteen days. If the Legislature intended that the rules should not come into force until the laying down period elapses, it would have said so in S. 69, sub-section (2). The omission to say so clearly brings out the intention of the Legislature that the enforcement of the rules did not depend upon the laying on the Table of the Houses for the prescribed period.

15. The argument that if the Legislature intended that the rules should come into force immediately after they were published, no specific period would have been prescribed for their being laid on the Table of both the Houses of the Legislature, has, in our opinion, no force. The period for laying down was prescribed so that the Legislature may have sufficient time to scrutinize the rules and propose any amendment or modification to the rules. Prescribing the period of laying down does not necessarily lead to the conclusion that the rules would not come into force until the period of laying down elapses. That is the view taken by is Division Bench of this Court in Madhava Rao's case, (1967) 2 Andh WR 366. The learned Judges, after reviewing a number of decisions of other High Courts in India, have come to the aforesaid conclusion. We respectfully agree with the said decision and do not see how it requires any reconsideration.

16. In the view we have taken, the writ appeal fails and is dismissed with costs. Government Pleader's fee Rs. 100/- (Rupees one hundred only).

Appeal dismissed.


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