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Gram Panchayat, Gorakhpur Vs. Khushali Dindayal Sahu - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtMadhya Pradesh High Court
Decided On
Case NumberL.P.A. No. 14 of 1967
Judge
Reported inAIR1973MP19; 1973MPLJ105
ActsMadhya Pradesh Land Revenue Code, 1959 - Sections 244
AppellantGram Panchayat, Gorakhpur
RespondentKhushali Dindayal Sahu
Appellant AdvocateR.S. Dabir and ;O.P. Namdeo, Advs.
Respondent AdvocateB.C. Verma, Adv.
Cases ReferredSurajmull v. Income
Excerpt:
- - 7. thus, we are clearly of the view that:.....until the contemplated rules are framed, the gram panchayat or the tahsildar cannot exercise the power conferred on them for disposal of abadi sites.3. the words 'subject to rules made in this behalf' or similar words are commonly employed in enactments, where the legislature contemplates framing of rules in exercise of delegated powers. we are of the opinion that that expression has to be interpreted according to the context in which it is employed. in each case the scheme and the provisions of the act have to be examined. where power is conferred and a machinery for its exercise already exists, it can be said that the expression 'subject to rules made in this behalf' has merely an overriding effect so that if any such rules are made, the exercise of the power shall be subject to such.....
Judgment:

Shiv Dayal, J.

1. This matter has been referred to this Full Bench to interpret the phrase 'subject to rules' in Section 244 of the M. P. Land Revenue Code. 1959. (hereinafter called the Land Revenue Code). The Division Bench which referred this matter to us saw an apparent conflict between two Division Bench decisions of this Court in Ithoba v. Collector of Chhindwara, Misc. Petn. No. 277 of 1962, decided on 26-10-1962 = 1964 MPLJ (SN) 18 and Bhagwat Prasad v. Government of M. P., 1966 MPLJ 557.

2. The question before us is :--

Whether the phrase 'subject to rules made in this behalf' in Section 244 of the M. P. Land Revenue Code. 1959, connotes that until the contemplated rules are framed, the Gram Panchayat or the Tahsildar cannot exercise the power conferred on them for disposal of abadi sites.

3. The words 'subject to rules made in this behalf' or similar words are commonly employed in enactments, where the legislature contemplates framing of rules in exercise of delegated powers. We are of the opinion that that expression has to be interpreted according to the context in which it is employed. In each case the scheme and the provisions of the Act have to be examined. Where power is conferred and a machinery for its exercise already exists, it can be said that the expression 'subject to rules made in this behalf' has merely an overriding effect so that if any such rules are made, the exercise of the power shall be subject to such rules. But where a special Power is conferred and there is nothing to regulate its exercise then that expression connotes that the power can be exercised only when the rules are framed and in accordance with them. To put it differently, in the former case, the rules will be so to say supplementary to the section: In the latter case, they will be complementary to the section. In the former case, the law is complete, even without the rules so that the rules, if any framed would have the overriding effect and in that case, the Power will be exercised only in accordance with them. But, in the latter case, the law is incomplete, and was deliberately left incomplete by the legislature to becompleted by delegated legislation underthe rule-making power. It can be saidthat in the former case, the phrase willbe read as 'subject to rules if any madein this behalf, while in the latter case.it would be read as 'subject to rules tobe made in this behalf'. The phrase 'subject to' signifies both these meanings that is. (1) liable or exposed to: likely to have; and (2) dependent or conditional on. Each of them is appropriatein its own context. Which of them willfit in, will depend upon the particularcontext. In Anand Nivas (P.) Ltd. v.Anandji. AIR 1965 SC 414 their Lordships have laid down thus:---

'Having regard to the plurality of its meaning, the sense in which the expression is used in different sections, and even clauses, must be ascertained from the context of the scheme of the Act, the language of the provision and the object intended to be served thereby.'

The decision in 1966 MPLJ 557 (Supra) also took the view which we take. In that decision, it is not held that the expression 'subject to rules framed under this Act' meant as a universal rule that the rules, if framed, would channelise that power to be exercised in accordance with them, but in no case can that expression mean to connote that the power could not be exercised unless and until rules are framed. That case was decided in view of its Particular context and it was held:--

'In our opinion. In the context of the Act, the intention was not to take away the right of the State Government to divide the municipality into wards until the rules were framed but to channelise the power in accordance with the rules if and when the rules were framed'.

The words 'in the context of the Act' are significant. That case is an illustration where the expression 'subject to rules' must be construed so as to connote an overriding effect.

4. In Mohd. Hussain v. State of Bombay. AIR 1962 SC 97 that expression was, in its particular context, construed as complementary, if we may say so. There. Section 11 of the Bombay Agricultural Produce Markets Act. 1939, gave power to the Market Committee subject to such maxima as may be prescribed, to levy fees on the agricultural produce bought and sold by licensees in the market area. Their Lordships held that one of the restrictions on the power of the Market Committee under Section 11 was that the fees fixed must be within the maxima prescribed by the rules and until such maximum was specified by theState Government under the rules, it was not possible for the Market Committee to fix any fees under Section 11. Thus. It was a case where the power conferred on the Market Committee could not be exercised until the rules were framed. That decision also is based on the particular context of the special enactment.

5. Shri Dabir strenuously relies on Surajmull v. Income-tax Commr., AIR 1961 Cal 578 (SB). In that case. Section 37 (2) of the Income-tax Act. 1922, which gave powers to the Income-tax authorities to enter and search any building or place and to seize books of account and other documents, was considered. That sub-section reads as follows:--

'37. (2) Subject to any rules made in this behalf any Income-tax Officer, specially authorised by the Commissioner in this behalf, may:

(i) enter and search any building or place where he has reason to believe that any books of account or other documents, which, in his opinion, will be useful for, or relevant to any proceeding under this Act may be found, and examine them if found:

(ii) seize any such books of account or other documents or place marks of identification thereon or make extracts or copies therefrom:

(iii) make a note or an Inventory of any other article or thing found in the course of any search under this section which in his opinion, will be useful for. or relevant to any proceeding under this Act:

and the provisions of the Code of Criminal Procedure. 1898 (V of 1898) relating to searches, shall apply, so far as may be, to searches under this section.'

It was held that the search and seizure, on the language of the impugned Section 37 (2), was not arbitrary, naked and unregulated power. It was circumscribed and regulated by a number of express conditions each one of which was important. The power could be exercised upon a special authorisation by the Commissioner himself, who was the highest executive officer of the Income-tax Department, and so on. It is abundantly clear that that decision was also rendered having regard to the particular context. As pointed out above, it was held that the power was not 'arbitrary, naked and unregulated'. That decision accords with the view we take.

6. We shall now advert to the provisions of Section 244 of the Land Revenue Code, which reads thus:--

'244. Disposal of abadi sites.-- Subject to rules made in this behalf the Gram Panchayat or where a Gram Panchayat has not been constituted theTahsildar shall dispose of sites in the abadi area.'

Now abadi area belongs to the State Government. It is not the property of the Gram Panchayat. Thus, special power is conferred under Section 244 upon the Gram Panchayat to dispose of sites in the abadi area. Under the Land Revenue Code, the Gram Panchayat has no such power ordinarily. It will be too much to think that the Legislature intended to confer on the Gram Panchavat arbitrary, naked and unregulated power to dispose of sites in the abadi area according to its own whim and sweet will, unless rules were made in that behalf. We have not the slightest doubt that in the particular context, the expression 'subject to rules made In this behalf' must be read as 'subject to rules to be made in this behalf'. The expression is complementary: unless and until the rules are framed, the power conferred on the Gram, Panchayat under Section 244 was incomplete and could not be exercised merely proprio vigore.

7. Thus, we are clearly of the view that: (1) The words 'subject to rules made in this behalf' connote either (a) that the power conferred in the section can be exercised even in the absence of any rules which may be made, but the rules, if and when made, will have overriding effect: or (b) that the power conferred in the section cannot be exercised unless and until rules are made. The latter position generally arises when the Legislature deliberately leaves the law incomplete, to be completed, in the matter of details, by delegated legislation. (2) which of the two meanings that expression connotes with regard to a particular section, will depend on the particular context in which the power is conferred, and in view of the scheme and the connected provisions of the Act. Where the law is complete and the exercise of Power is already regulated by it, although not so fully as would be when the rules are made, the first meaning will fit in But where the law is incomplete and without the rules, the exercise of the power will be arbitrary, naked and unregulated, the second meaning has to be attached. In the former case, the expression should be read as 'subject to rules, if any made in this behalf', while in the latter case, it should be read as 'subject to rules to be made in this behalf'. (3) Each of the two cases in Misc. Petn. No. 277 of 1962. D/- 26-10-1962 = 1964 MPLJ (SN) 18 (supra) and 1966 MPLJ 557 (supra) were correctly decided. There is no conflict between them. (4) The power conferred under Section 244 of the M. P. Land Revenue Code. 1959, must be held to be dependent on the rules to be made, Until the rules were made the law wasIncomplete. Therefore, the Power conferred in the section could not be exercised until rules were framed in that behalf.

8. The case shall now be placed before a Division Bench for disposing of the Letters Patent Appeal.


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