Skip to content


Manilal Bhukhandas Chevli Vs. Industrial Court, Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 948 of 1960
Judge
Reported in[1965(11)FLR14]; (1965)GLR369; (1965)ILLJ598Guj
ActsBombay Industrial Relations Act, 1946 - Sections 42, 42(1), 46 and 113
AppellantManilal Bhukhandas Chevli
Respondentindustrial Court, Gujarat and ors.
Cases ReferredLtd. v. State of Kerala and
Excerpt:
labour and industrial - constitutional validity - sections 42, 42 (1), 46 and 113 of bombay industrial relations act, 1946 - whether section 113 ultra vires as it empowers state government to make addition or alterations in industrial matters in schedule 2 - power to alter or add to any of matters in schedules does not mean power to alter policy expressed by legislature in act or to change its object - nothing to show surrender or abdication of legislative power by legislature - held, impugned section does not suffer from constitutional invalidity. - - .thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation, the manner in which the requirements of the statute are to be met and.....shelat, c.j.1. the petitioner carries on the business of manufacturing art silk cloth in the name and style of united textile manufacturing company at surat. respondent 2 which is a representative union, filed an application in the third labour court at ahmedabad against the petitioner inter alia for a declaration that he had committed an illegal change by changing the practice of assigning two looms per weaver to assigning three looms per weaver and thereby introducing rationalization, and prayed for the withdrawal of this change which he alleged was an illegal change. in his written statement, the petitioner denied that there was any rationalization as alleged and stated that no notice was required under the provisions of s. 42(1) of the bombay industrial relations act, 1946. the.....
Judgment:

Shelat, C.J.

1. The petitioner carries on the business of manufacturing art silk cloth in the name and style of United Textile Manufacturing Company at Surat. Respondent 2 which is a representative union, filed an application in the third labour court at Ahmedabad against the petitioner inter alia for a declaration that he had committed an illegal change by changing the practice of assigning two looms per weaver to assigning three looms per weaver and thereby introducing rationalization, and prayed for the withdrawal of this change which he alleged was an illegal change. In his written statement, the petitioner denied that there was any rationalization as alleged and stated that no notice was required under the provisions of S. 42(1) of the Bombay Industrial Relations Act, 1946. The petitioner also raised other contentions, but it is not necessary for us to consider them as they are no longer relied upon by the petitioner. The labour court held that the petitioner had brought about an illegal change, and granted respondent 2's prayer. An appeal against that order was rejected by the industrial court which confirmed the decision of the labour court and gave four months' time to the petitioner to withdraw the illegal change. It is against these orders that the petitioner filed present petition for a writ of certiorari to quash and set aside the said orders.

2. The impugned orders were based upon item 4 of Sch. II to the Act. As it stood originally, the items was as follows :-

'Rationalization or other efficiency systems of work.'

3. This items was however amended by a notification No. 1287/48, dated 7 December 1953, and the amendment added the following words in that item, namely,

'whether by way of experiment or otherwise.'

4. The defence of the petitioner, both in the labour court as also in the industrial court, was that the change which was admittedly effected by him, did not amount to rationalisation, for, the assignment of three looms to each workers instead of two looms as before was by way of an experiment only. The petitioner also challenged the power of the State Government to issue this notification and further challenged the validity of S. 113 of the Act whereunder power to alter or amend Schs. I, II and III or even to delete therefrom any matter, was reserved to the State Government. The case of the petitioner thus was that the change effected by him would not amount to rationalization and that this case would not fall within that item except for the reason that the State Government changed that item by the aforesaid notification. But since the provisions of S. 113 did not validly confer power upon the State Government to effect any change or alteration in the said item, his case would not fall either under that item or under S. 42 or S. 46 of the Act. These contentions were rejected by the authorities below and as aforesaid, the petitioner has filed the present petition challenging their orders.

5. On behalf of the petitioner, the same contention has been raised before us, namely, that S. 113 of the Act is ultra virus inasmuch as it empowers the State Government to make at any time any addition to or alterations in industrial matters specified in any of the three schedules or even to delete any matter therefrom. The argument was that under this section, the State Government can add at any time it chooses any industrial matter in Sch. II or delete any matter therefrom and thus make a change without notice which was not illegal, illegal, and that which was illegal, legal. It was submitted that the State Legislature has not laid down any limit to such a power nor any condition upon which the executive can exercise this power, nor has it laid down any principle or criteria defining as to what matters can be added or altered. The consequences of such an unbridled power would be that the executive can introduce any matter it likes and create new offences of a penal character. The contention, therefore, was that granting of such a power to the State Government under S. 113 amounted to excessive delegation and surrender by the legislature of its legislative power and that the section consequently was ultra vires.

6. The three schedules to the Act are made under Ss. 35 and 42. Under S. 35, every employer, within six weeks from the date of the application of the Act to an industry, has to submit to the Commissioner of Labour for approval draft standing orders relating to the relations between him and his employees with regard to industrial matters set out in Sch. I. The Commissioner then has to settle the standing orders in the manner prescribed in Sub-section (2) and then forward them to the Registrar who has to record them in the register kept for that purpose, and the standing orders so settled are to come into operation from the date that the registrar records them. Under S. 40, the standing orders settled under Ss. 35 to 39 are to determinative of the relations between the employer and his employees in regard to matters enumerated in Sch. I. Under S. 42(1) an employer intending to make any change in respect of any of the matters set out in Sch. II has to give notice of such intention to the representative of the employees and has to send a copy of such notice to the authorities therein mentioned and has also to affix another copy of the same at a conspicuous place in the premises where the employees affected by such change are employed to work. Under S. 42(2) when an employee desires a change relating to matters not in Schs. I and II a notice of change has to be given to the employer through the representative of the employees. Under Sub-section (4) of S. 42, any employee or a representative union desiring a change in respect of any order passed by the employer under the standing orders or any industrial matter arising out of the application or interpretation of the standing orders of any industrial matter specified in Sch. III, has to make an application to the labour court. Section 46 then provides that no employer shall make any change in any standing order without following the procedure prescribed therefor in the Act, and it further provides that no employer shall make any change in any industrial matter mentioned in Sch. II before giving notice of such change as required by S. 42(1) and that any change in contravention of the provisions of S. 46 shall be deemed to be an illegal change. It was argued that under the power given under S. 113, the State Government can introduce any new industrial matter in any of the three schedules and in particular, so far as Sch. II is concerned, can convert thereby a change which was a lawful change into an illegal one and by its exercise of power of deletion, the State Government can also bring about the vice versa effect.

7. Sri Kazi, who appears for the petitioners in the next petition and which also involves the same question, argued that the Act provides a mere framework for the machinery under which the legislature object underlying the Act is sought to be achieved, namely, regularizing the relations between employers and the employees, the maintenance of bargaining power of the employees and amity in the industrial relations between them. But he contended that the Act derived its vitality from the schedules and the working of the Act depended upon what matters were introduced in the schedules. According to him, the three schedules are, therefore, not only important but part of the Act and therefore, if powers to amend or alter them or to delete any of the matters therefrom is given to the executive, such power would be nothing short of a legislative power and would amount to a power under which the executive would be able to change even the policy of the Act and therefore must amount to excessive delegation equivalent to abdication of its legislative power by the legislature.

8. On these contentions, the question that arises is whether S. 113 of the Act can be said to be a delegated legislation or a conditional legislation, for, it would be only in the case of the former that question as to whether the delegation is excessive or not would arise. In a sense, every legislature does in one way or the other delegate some of its functions and we should think that it is too late in the day to say that a legislature cannot create a prescribed authority and give it the power to make rules, bylaws and regulations that would have the force of law. In one sense, whether the legislation is a delegated legislation or a conditional one, there is delegation of authority because it authorises some other body which the legislature specific to do something which the legislature might have done by itself, and it is too late to argue that such delegation is objectionable. Though there is delegation in a sense in both the types of legislation, there is a clear distinction between the two. Fortunately, we do not have to go into a detailed enquiry for ascertaining the principles which divide the two types of legislation, for, the Supreme Court has in more than one case indicated this distinction. In Hamdard Dawakhana and another v. Union of India : 1960CriLJ671 . S. 3 of the Drugs and Magic Remedies (Objectionable Advertisements) Act 1954, was challenged inter alia on a ground similar to the one raised before us, namely, that that section surrendered unguided and uncanalised power to the executive Act provided that -

'Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for

* * * (d) the diagnoses, cure, mitigation, treatment or prevention of any venereal disease or any other disease or condition which may be specified in rules made under this Act.'

9. Section 10 of the Act conferred power upon the Central Government to make rules and provided as follows :

'(2) In particular and without prejudice to the generality of the foregoing power, such rules may -

(a) specify and disease or condition to which the provision of S. 3 shall apply;

(b) prescribe the manner in which advertisement of articles or things referred to in Clause (c) of Sub-section (1) of S. 14 may be sent confidentially.'

10. The argument there was that S. 3(d) was a delegated legislation and not a conditional legislation as the power delegated thereunder was only to specify conditions and diseases in the schedule. The interdiction under the Act was applicable to conditions and diseases set out in S. 3 and to those that might be specified under the last part of Clause (d) of S. 3 in the rules made under power reserved under S. 16. The Supreme Court held that the rule-making power which empowered the executive to specify conditions and diseases in the schedule amounted to delegated legislation and since the Parliament had not laid down any criterion or standard nor any principle upon which a particular disease or a condition is to be specified in the schedule nor facts and circumstances to be taken into consideration for including in the schedule any particular disease or condition, the power went beyond the permissible boundaries of valid delegation. In answer to a contention raised by the learned Solicitor General that the schedule amounted to conditional legislation and not to the exercise of delegated legislative power, the Supreme Court observed that the distinction between conditional legislation and delegated legislation was that in the former the delegate's power was that of determining when a legislative declared rule of conduct shall become effective, and the latter involved delegation of rule-making power which constitutionally might be exercised by the administrative agent. The Supreme Court then observed :

'This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is excised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend. ... Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation, the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation.'

11. The distinction, as stated by the Supreme Court therefore, is that in the case of delegated legislation, the specified authority is empowered to make rules and regulations in the details to carry out the purpose of the legislation, to lay down the manner in which the requirements of the statute are to be met and the rights created therein are to be enjoyed. While in the case of conditional legislation, the Act is complete in itself and the only function left to the authority is to apply the legislation to an area or to determine the time and manner of carrying it into effect. The question of excessive delegation was again raised in Swadeshi Cotton Mills Company, Ltd. v. State Industrial Tribunal, Uttar Pradesh, and other [1961 - II L.L.J. 419], where Cls. (c), (d) and (g) of S. 3 of the Uttar Pradesh Industrial Disputes Act, 1947, were challenged. Section 3 of that Act inter alia provided that -

'If, in the opinion of the State Government it is necessary or expedient so to do for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community, or for maintaining employment, it may, by general or special order, make provision -

* * * (c) for appointing industrial courts :

(d) for referring any industrial dispute for conciliation or adjudication in the manner provided in the order;

* * * (g) for any incidental or supplementary matters which appear to the State Government necessary or expedient for the purposes of the order.'

12. The Supreme Court in this decision did not think it necessary to consider the distinction between a conditional and a delegated legislation but held on the footing that S. 3 was delegated legislation that the impugned section did not suffer from the vice of excessive delegation. Their lordships first cited the observations of Mukherjee, J., in In re. The Delhi Laws Act, 1912 [A.I.R. 1951 S.C. 332 at 400].

'The essential legislative function consists in the determination of choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy. So long as a policy is laid down and a standard established by statute no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the legislation is to apply.'

13. Dealing with the impugned section, their lordships then observed that what they had to ascertain was whether the legislature in the case before them had performed its essential legislative function of determining and choosing a legislative policy and of formally enacting that policy into a binding rule of conduct. They then stated that it was open to the legislature to formulate that policy as broadly and with as little or as much details as it thought proper and thereafter, once the policy was laid down and the standard established by statute, there was no question of delegation of legislative power and all that remained was making subordinate rules within the prescribed limits which might be left to the selected instrumentalities. If, therefore, the legislature, in enacting S. 3, had chosen the legislative policy and had formally enacted that policy into a binding rule of conduct, it could leave the rest of the details to Government to prescribe by means of subordinate rules within the prescribed limits. As regards the impugned section, they observed that S. 3 laid down under what conditions it would be open to Government to act under that section. It also laid down that the Government might act by passing a general or special order, once those conditions were fulfilled, and it also provided what would be contained in such general or special order of Government. The power given to the Government was inter alia to appoint Industrial Courts, to refer any industrial dispute for conciliation or adjudication in the manner provided in the order and to make any incidental or supplementary provision which might be necessary or expedient for the purposes of the Act. The legislature, therefore, had indicated its policy and had made it a binding rule of conduct. It had also indicated when the Government should act under S. 3, how it should act and what it should do when it acted under S. 3. In these circumstances, the Supreme Court held that it could not be said that delegation made by S. 3 was excessive or that it went beyond permissible limits. The decision in Swadeshi Mills case [1961 - II L.L.J. 419] (vide supra) therefore was again a decision in a case of delegated legislation. In Bangalore Woollen, Cotton and Silk Mills Company, Ltd. v. Corporation of City of Bangalore : [1961]3SCR698 , the question of excessive delegation was once again raised with reference to S. 130 of the City of Bangalore Municipal Corporation Act, 1949, and Clause 3 of Sch. III, Part V of that Act. Section 130 of that Act provided that if the corporation by a resolution determined that an octroi should be levied on animals or goods brought within the octroi limits of the city, such octroi should be levied on such articles or goods specified in Part V of Sch. III at such rates not exceeding those laid down in the said part in such manner as might be determined by the corporation. Clause 18 of that schedule provided that octroi on animals and goods should be levied at the rates not exceeding the following. Clauses I to VII specified articles on which octroi could be levied at the maximum rate. But Clause VIII was as follows :

'Octroi Maximum rate Other articles which are Rs. 2 percent not specified above and ad valorem.' which may be approved by the corporation by an order in this behalf.

14. Class VIII thus empowered the municipal council to impose octroi duty on other articles which were not specified but which might be approved by the corporation. In other words, the corporation could choose other articles upon which tax could be imposed and the respondent-corporation in that case did resolve to impose tax on raw cotton and wool and also fixed the rate at Rs. 1-9-0 per cent ad valorem. Upon a challenge to these provisions, the Supreme Court came to the conclusion that power under class VIII referred to above was conditional legislation and held that its decision in Hamdard Dawakhana case : 1960CriLJ671 relied upon by the petitioners had no application to the facts of the case before them. At p. 1266 of the report, the Supreme Court concluded that the legislature had laid down the powers of the municipality to tax various goods. It had also enumerated certain articles and animals and class VIII read with S. 97(e) of the Act had authorized the municipality to impose tax 'on other articles and goods.' This power, the Supreme Court held, was more in the nature of conditional delegation, for all that the legislature had done was that it had specified certain articles on which octroi duty could be imposed and it had also given to the municipal corporation the discretion to determine on what other goods and under what conditions the tax should be levied. The ratio decidendi of this case appears to be that it was not a case of delegated legislation as was the case in Hamdard Dawakhana : 1960CriLJ671 for the legislature had not only empowered the municipality to tax the various goods but had also specified certain articles upon which the municipal corporation could impose octroi and that the only thing that the Act empowered the corporation was to determine on what other goods and under that conditions the tax should be levied. In other words, the Act with which the Supreme Court had to deal with was a complete Act and unlike the case of Hamdard Dawakhana : 1960CriLJ671 it was not as if the legislature had merely laid down broad principles, leaving it to a specified authority to fill in the details by means of rules or regulations made under a power reserved therefor. The characteristics of conditional legislation have been fully brought out in Baxter v. Ah way [(1909) 8 C.L.R. 626] which was cited with approval by the Supreme Court in the case of Bangalore Woollen, Cotton and Silk Mills : [1961]3SCR698 . The question raised in that case was whether a proclamation made by the Governor-General in Council dated 29 December 1905 and which prohibited importation of opium suitable for smoking was valid. Section 50 of the Australian Customs Act provided that no prohibited import shall be imported and S. 52 therefore stated what were the prohibited imports and Sub-section (g) of the section provided that all goods the importation of which might be prohibited by proclamation would be prohibited imports. The objection taken was that this power to prohibit importation of opium by means of a proclamation was a power that must be exercised by the legislature directly and that it could not be delegated to the Governor-General in Council. Dealing with this objection, Griffith, C.J., relying on Reg. v. Burah [3 A.C. 889,] observed that there being no objection to a conditional law being passed, the legislature could say that certain goods should be prohibited and that any goods which it was not desirable to admit into the commonwealth should not be imported. And unless the legislature was prepared to lay down at once and for all time, or for so far into the future as they might think fit, a list of prohibited goods, they must have power to make a prohibition depending upon a condition, and that condition might be the coming into existence or the discovery of some fact. The expediency of admitting particular goods into the Commonwealth as a particular time would be a question of fact. Whether it was desirable or reasonable that goods in a certain condition should be excluded would be another question of fact. And if that fact were to be the condition upon which the liberty to import the goods was to depend, there must be some means of ascertaining that fact, some person with power to ascertain it; and the Governor-General in Council was the authority appointed to ascertain and declare the fact. The principle which thus distinguished conditional legislation from delegated legislation is that the legislature, instead of laying down and for all time a list of items, can confer power upon a specified authority to make such a list or to add to or subtract from a list prepared by the legislature itself, leaving that authority to ascertain a fact or a condition, upon the happening of which the prohibition should apply. If the legislature appointed the Governor-General in Council as the authority to ascertain and declare such a fact, there was no objection to the legislature conferring such authority upon him.

15. The objection raised before us is somewhat similar to the one raised in Bangalore Woolen, Cotton and Silk Mills case : [1961]3SCR698 and the principle there laid down must apply to the case before us. The legislature has enacted the Act for the object which is clear from the various provisions therein enacted. In order that that object, namely, the regulation of relations between employers and employees in certain matters, and the settlement of industrial disputes between them, should be achieved, the legislature has also laid down a policy, and that policy with reference to the challenge made before us, is that so far as matters enumerated in Sch. II are concerned, they should not be changed by the employer without notice and without following the procedure laid down in S. 42. The legislature has also laid down in S. 46 the consequence that would follow if the provisions of S. 42 are not satisfied. It is clear from Ss. 35 and 42 and the three schedules made thereunder, that the matters set out in the schedules pertain to certain industrial matters dealing with the rights and obligations of the employers and the employees and the policy is to regulate them as provided by sections 35 and onwards. The Act thus has not only laid down the object and the policy but has also specified the area within which it is to operate and the persons to be affected thereunder. It is, therefore, clear that the Act is a complete one and nothing has been left to be filled in or supplemented by any extraneous authority by means of rules and regulations. The only thing that S. 113 appears to do is to empower the Government to add to or alter or delete any of the matters specified by the legislature itself in these three schedules. In the words of Griffith, C.J., the legislature has not made at one time and for all times a list of industrial matters in these schedules but what it has done is to leave to the State Government to project its mind in future and considering the exigencies that might arise in changing circumstances, to add to or alter or delete that which might become unsuitable or superfluous or unnecessary. Under the proviso to that section, the legislature has also laid down a limitation to the exercise of power conferred thereunder and that limitation is that before making any addition, alteration or deletion, the State Government has to publish first a draft altering or adding or deleting for the information of those affected by it and then has to consider the objections or suggestions of such persons and only after doing so, introduce the change. This clearly shows that what the legislature did was to entrust to the State Government the function determining a fact or a circumstance which might necessitate a change in the industrial matters set out in the schedules and then introduce such a change. The legislature appears to have realized that in the present-day world of rapid changes, it would not be prudent for it to lay down an inflexible list of matters to be set out in the schedules for all times to come and, instead of itself making the alterations or additions therein, gave power to the State Government to first determine facts and circumstances and then deciding and inserting a change therein, the legislature well believing that the State Government was an apter agency to decide such facts rather than itself. In these circumstances, we are of the view that there is no delegation of legislative power in S. 113, much less an excessive delegation, the legislative power having already been fully exercised by the legislature. We are fortified in this conclusion by a decision of the Supreme Court in Edward Mills Company, Ltd. v. State of Ajmer [1954 - II L.L.J. 686] where a notification issued by the State Government of Ajmer, fixing the minimum rates of wages in respect of employments in textile industry within that State under the Minimum Wages Act, 1948, was challenged as being ultra vires, Dealing with S. 27 of the Act, the Supreme Court observed that though that section contained an element of delegation, such delegation, if it could be so called at all, did not, in the circumstances of the case, appear to be unwarranted or unconstitutional. They held that the legislature had laid down its legislative policy and what it aimed at was the statutory fixation of minimum wages with a view to obviate the chances of exploitation of labour. The legislature, however, did not intend to apply the Act to all industries but only to those industries where by reason of unorganized labour or want of proper arrangement for effective regulation of wages or for other causes, the wages of labourers in a particular industry were very low. It was with an eye to these facts that the list of trades had been drawn up in the schedule attached to the Act, but the list was not an exhaustive one and it was the policy of the legislature not to lay down at once and for all time to which industries the Act should be applied. Conditions of labour may vary in different circumstances and from State to State, and the expediency of including a particular trade or industry within the schedule depended upon a variety of facts which by no means could be uniform and which could best be ascertained by the person placed in charge of the administration of a particular State. Their lordships therefore observed that it was to carry out effectively the purpose of the Act that power had been given to the appropriate Government to decide with reference to the local conditions whether it was desirable that minimum wages should be fixed in regard to a particular trade or industry which was no already included in the list. Therefore, in enacting S. 27, the legislature had not stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. The power entrusted under S. 27 of the impugned Act was almost similar to the one given under the Act challenged before as and the reasoning applied in that decision would also be applicable to the case before us. The specific question as to the power to amend a schedule in an Act arose in Banarasi Das v. State of Madhya Pradesh : [1959]1SCR427 , where the Supreme Court laid down that it was not unconstitutional for the legislature to leave it to the executive to determine the details relating to the working of the taxation laws, such as, the selection of persons on whom the tax is to be levied, rates at which it is to be charged in respect of different classes of goods and the like. The Supreme Court also laid down that the power conferred on the State Government by S. 6(2) of the Central Provinces and Berar Sales Tax Act, 1949, to amend the schedule relating to exemption was in consonance with the accepted legislative practice relating to the topic and was not unconstitutional. That was a case of repealing or modifying a provision in a statute relating to certain exemptions, and a contention was advanced that such repeal or modification would be ultra vires as it would amount to a reversal of the policy laid down by the legislature. That argument, was, however, repelled on the ground that it would not be unconstitutional for the legislature to leave it to the executive to determine the details relating to taxation laws, such as for instance, selection of persons on whom the tax was to be levied. On that ground the Court held that the power conferred on the State Government under S. 6(2) to amend the schedule relating to exemptions was not unconstitutional.

16. Even assuming that S. 113 were to be regarded as delegated legislation, for the very reason which we have given above the impugned section cannot be said to have gone beyond the permissible bounds, sections 42 and onwards having laid down the policy that changes in certain matters are not to be effected without a notice and without following the procedure therein prescribed. The legislature has already exercised its legislative power, even set out matters which it thought should properly be set out in the schedules and the only power it left to the executive under S. 113 was to add to or alter or delete therefrom any matter depending upon the exigencies when an alteration or addition or a deletion might become necessary for the proper working of the Act, its implementation and the achievement of the object for which the Act was enacted. That a power to delete a certain item from a schedule is not invalid, is also clear from Banarasi Das v. State of Madhya Pradesh : [1959]1SCR427 . These decisions show that the power to alter or add to any of the matters in the schedules does not mean the power to alter the policy expressed by the legislature in the Act or to change its object.

17. Sri Kaji however relied upon a decision of the Kerala High Court in Damodaran v. State : AIR1960Ker58 . In that case, S. 18(1) of the Travancore-Cochin Motor Vehicles Taxation Act, 1950, was challenged on the ground of excessive delegation of legislative power. In that case, the High Court struck down a part of S. 78(1) which related to the power of the State Government to fix rates, but it did so on the ground that it amounted to violation or modification of the policy of the legislature embodied in the proviso to S. 3 of the Act, but upheld the rest of that section on the ground that by Ss. 3(1) and 3(2) of the Act, the legislature had formulated a policy that the maxima should in no case be exceeded. The High Court expressly held that the power under S. 18(1) conferred on the State Government to make alterations or amendments in Schs. I, II and III of the Act, namely, additions to the list of vehicles or removal of some of those already in the list, could be legitimately made and such changes being within the framework of the policy of the Act, would be competent. The High Court only struck down the delegation of power under S. 18(1) of the Act to the extent that it authorized the Government to fix rates in excess of the maximum prescribed in Schs. I and III of the Act as passed by the legislature, and held the impugned notifications issued thereunder ultra vires the powers of the Government. It is difficult to understand how Sri Kaji could place reliance upon this decision, for, the decision on the contrary lays down that if the legislature has expressed its policy in the Act, a power can legitimately be conferred upon the State Government or any other prescribed authority to alter or amend the schedules annexed to such an Act, provided that such power does not amount to a reversal of the policy or is not otherwise inconsistent with such policy. Sri Kaji has not been able to point out anything in S. 113 or any other provision in the Act which can be said to confer power on the State Government which, when exercised, would be contrary to the policy expressed by the legislature in the Act. Another decision relied upon by Sri Kaji was the one in Standard Motor Union (Private), Ltd. v. State of Kerala and others : AIR1962Ker298 . In that case S. 12 of the Travancore-Cochin Motor Vehicles Act of 1950, which provided for the establishment and levy of tolls in special cases, was challenged on ground of excessive delegated legislation. The section provided that -

'Where Government is satisfied that special circumstances exist, for the levy of toll on any road or bridge, they may subject to such conditions as they may deem fit to impose direct by notification in the Gazette the levy of toils on vehicles using such road or bridge and thereupon the provisions of the law relating to toils for the time being in force shall apply thereto.'

18. On an examination of the impugned Act and its various provisions, the learned Judge, who decided that case, came to the conclusion that there was no indication in the Act as to what circumstances could be considered to be special circumstances under S. 12, justifying the levy of a toll, and a decision as to what would constitute special circumstances for the levy of a toll was completely left to the sole and exclusive discretion of the Government without any guidance or restriction whatsoever. He also held that the legislature had not specified on what basis the toll was to be levied on the various vehicles using the bridge or the road. Even the maximum levy that could be made under the section was not indicated by the legislature and therefore, it was open to the Government to treat any circumstance as a special circumstance and the only requirement was that the Government should be so satisfied. It was also open to the Government to levy toll on any road or bridge they might think necessary and this, according to him, went to show that the legislature had not even laid down any policy in the Act nor any criterion on the basis of which the Government could determine whether a special circumstances under S. 12 of the Act arose or not. It was on these grounds that the High Court held that S. 12 amounted to excessive delegation of the legislative power and therefore fell within the dicta of Hamdard Dawakhana case : 1960CriLJ671 . We fail to see how this decision can have any relevance to the facts before us and how Sri Kaji can derive any assistance therefrom. The case before us is more akin to the one in : [1959]1SCR427 and the other decisions of the Supreme Court referred to above. The decision in standard Motor Union (Private), Ltd. v. State of Kerala and others [A.I.R. 1962 Kerala 298] (vide supra) supports the conclusion to which we are inclined to arrive at rather than the contention raised on behalf of the petitioner.

19. For the reasons aforesaid, we are of the view that the impugned section does not suffer from any constitutional invalidity and it is not possible to come to the conclusion that it amounts either to surrender or abdication of the legislative power by the legislature. In the results, the petition fails and must be dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //