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Bansilal Vs. State of Madhya Bharat and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1958)IILLJ587MP
AppellantBansilal
RespondentState of Madhya Bharat and anr.
Excerpt:
.....to period undergone by appellant considering mental agony suffered by him - now, it is well established that where a power has been validly delegated to an authority, then that authority cannot either change or exceed the delegated powers. the petitioner is clearly a person affected by the exemption of the establishment in which he is serving from the operation of sections 10, 16 and 17 of the act......to the government the power 'to exempt from the operation of the act' any other establishment or class of establishments or person or class of persons by issuing a notification in that behalf in the official gazette. on 5 august 1954, the madhya bharat government issued a notification under section 4(1)(i) inter alia exempting:dukan yevam vyavasayik va anya sabhi samsthanonke niyoktha (in hindi)from the operation of sections 10, 16 and 17 of the act. section 4 of the act was amended by act xvi of 1956 and a new sub-section (3) was inserted in section 4 with effect from 13 july 1956. that sub-section runs as follows:(3) the government may by notification in the official gazette direct that any of provisions of this act shall not apply to such establishments or class of establishments or.....
Judgment:

Dixit, J.

1. The point raised in this petition under Article 226 of the Constitution of India is about the validity of a notification issued by the Madhya Bharat Government under Section 4(1)(i) of the Madhya Bharat Shops and Establishments Act, 1952. The Act came into force on 22 April 1952, in those areas of Madhya Bharat which were specified in Sch. I to the Act which included Indore City. Clauses (a) to (ft) of Section 4(1) enumerated the persons and establishments to which the Act was not applicable. Clause (i) of Section 4(1) gave to the Government the power 'to exempt from the operation of the Act' any other establishment or class of establishments or person or class of persons by issuing a notification in that behalf in the official gazette. On 5 August 1954, the Madhya Bharat Government issued a notification under Section 4(1)(i) inter alia exempting:

Dukan yevam vyavasayik va anya sabhi samsthanonke niyoktha (in Hindi)

from the operation of Sections 10, 16 and 17 of the Act. Section 4 of the Act was amended by Act XVI of 1956 and a new Sub-section (3) was inserted in Section 4 with effect from 13 July 1956. That sub-section runs as follows:

(3) The Government may by notification in the official gazette direct that any of provisions of this Act shall not apply to such establishments or class of establishments or person or class of persons as may be specified therein.

On 14 August 1956, the petitioner Bansilal, who is a resident of Indore City and employed in a shop belonging to the opponent Siremal, filed this petition stating that the establishment in which he is serving is one to which the Madhya Bharat Shops and Establishments Act originally applied but later on by a notification Issued by the Madhya Bharat Government on 5 August 1954, it was exempted from the operation of SB. 10, 16 and 17 of the Act, and contending that the notification being repugnant to Article 14 of the Constitution was void and that it was also ultra vires the powers of the Government under Section 4(1)(i).

2. Mr. Daji, learned Counsel for the applicant, argued that Section 4(1)(i) gave to the Government power to exempt establishment or class of establishments or person or class of persons from the operation of the entire Act and not from the operation of only such, provisions which the Government might select, that, therefore, the notification issued by the Government exempting the establishment in which the petitioner was serving from the provisions of Sections 10,16 and 17 was beyond the powers conferred on the Government under Section 4(1)(i), and that the notification could not be said to have been validated by Sub-section (3) of Section 4 which was inserted in the Act after the Issue of the notification. It was also said that Sections 4(1)(i) and 4(3) were invalid as they amounted to delegation of legislative power, and that they were also void as they violated Article 14 of Constitution. Learned Counsel, however, said that he would not press for decision in this petition his contention based on Article 14 of the Constitution and about the delegation of legislative power if the notification in question was held to be ultra vires the powers of the Government under Section 4(1)(i) of the Act.

3. In our view, the contention advanced by the learned Counsel for the applicant that in issuing the notification in question the Madhya Bharat Government exceeded the prescribed limits of its power under Section 4(1)(i) must be accepted. The power to determine the establishment or establishments or person or class of persons to which the Act would be applicable belongs to the legislature. The State legislature delegated to the Government power to exempt from the operation of the Act establishment or class of establishments, or person or class of persons, other than those enumerated in Clauses (a) to (h) of Section 4(1). But this power of exemption given to the Government depends upon the terms of the grant to it in the Act. Now, it is well established that where a power has been validly delegated to an authority, then that authority cannot either change or exceed the delegated powers. The authority can only act within the scope of the affirmative words which give the power. Neither the authority nor the Court can enlarge constructively the restrictions or conditions by which the power is limited. Clause (i) of Section 4(1) gives to the Government power to exempt from the operation of the Act establishment or class of establishments or person or class of persons other than those specified in the earlier Sub-clauses of Section 4(1). The delegated power under Section 4(1)(i) is not in respect of exemption from any of the provisions of the Act. Now it is plain enough that the power to exempt from the operation of the Act is, in its nature, content and scope, entirely different from the power to exempt from the operation of any provisions of the Act. Whereas the former power gives no discretion to the Government in the matter of the extent of exemption, the latter power necessarily involves such discretion. When no such discretion has been conferred on the Government under Section (1)(i), the notification issued on 5 August 1954, exempting the establishment in which the petitioner is serving from the operation of Section 10, 16 and 17, cannot be held to be valid under Section 4(1)(i) of the Act.

4. It cannot be argued with any degree of force, and indeed it was not argued before us fey the learned Government advocate, that the invalidity in the notification issued on 5 August 1954 was cured by the power which was given to the Government subsequently by the new Sub-section (3) of Section 4. Learned Government advocate, however, contended that under Section 4(1)(i) the Government could grant exemption in respect of only certain provisions of the Act. This contention, as has been stated above, cannot be accepted.

5. It was also urged by the learned Government advocate that as no order of any kind had been passed against the petitioner under the Act, he was not entitled to file this petition challenging the validity of the notification, and that the person affected by the notification was the authority entrusted under the Act with the task of enforcing the provisions of the Act. We are unable to accede to this contention. The petitioner is clearly a person affected by the exemption of the establishment in which he is serving from the operation of Sections 10, 16 and 17 of the Act. Section 10 is about the opening and closing hours of an establishment. Section 16 relates to the closure of an establishment on any one day in a week. Section 17 speaks of opening and closing of restaurants and eating houses. If the petitioner is employed in an establishment described at serial number 18 of the notification in question and this fact has not been disputed before us, then it is obvious that he is a person affected by the opening and closing hours of the establishment and Its closure on any one day in a week. The petitioner is thus a person aggrieved by the notification and he has shown that the rights which would have been available to him under Sections 10 and 16, have been impaired by the notification granting exemption to the establishment in which he is serving from the operation of those provisions. He is, therefore, entitled to challenge the validity of the notification.

6. In the view we have taken of the invalidity of the notification, it is not necessary to consider the other objections raised by the learned counsel for the applicant about the validity of Sections 4 (1)(i) and 4(3) of the Act.

7. For these reasons, this petition is allowed and the exemption from the operation of Sections 10, 16 and 17 granted to the establishments described in item 18 of the notification issued on 5 August 1954 is held to be invalid. In the circumstances of the case, we make no order as to costs.

Nevaskar, J.

8. I agree.


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