1. This is an application under Article 226 of the Constitution of India. Petitioners Nos. 1 to 5 were elected members of the Makrana Municipal Board before the Rajasthan Municipalities Act (Act No. 38 of 1959) (hereinafter referred to as 'the Act') came into force. The municipal board that functioned at the time the new elections were held, became 'func-tus officio on account of the term of that board having run out. The new board could not be constituted before the Rajasthan Municipalities Act came into force for the reason that two members who had to be nominated before it could function were not so nominated by the Government.
After the coming into force of the Rajasthan Municipalities Act of 1959, the Government issued the Rajasthan Municipalities (Transitory Provisions) Second Order, 1959 (Order No. II of 1959), and Section 3 thereof provided as follows:
'In cases in which elections to a Municipal authority established under and governed by any repealed law have been held, but such municipal authority has not been completely formed or begun to function before the appointed date, then, notwithstanding anything to the contrary contained in the repealed law or in the Act -
* * (iv) where any repealed law or an order thereunder fixing the number of members of a Municipal authority contained a provision for the nomination or co-option of some members, the number of seats to be filled up by nomination or co-option may be filled after the appionted date by co-option of one person belonging to the scheduled castes or the scheduled tribes and 2 persons belonging to the female sex if no such person has been returned byelection or one such person if only one such person has been returned and the members elected as aforesaid shall forthwith enter upon their duties for the purpose of such co-option in accordance with rules made under the Act, and
(v) in either of the cases covered by Sub-clauses (iii) and (iv) of this clause, the provisions contained in Sub-sections (2), (3) and (5) of Section 9 of the Act shall, for the purpose of the complete formation of the Municipal authority concerned, be deemed to be omitted'.
Under Section 3(iv) and (v), the Sub Divisional Officer, Parbatsar is taking steps for making arrangements for co-option of two members of the Makrana Municipal Board, one from among the Scheduled Castes or the Scheduled Tribes and the other from the female sex. The petitioners have come to this Court against the co-option proceedings under Section 3 (iv) read with Sub-section (v) of the Rajasthan Municipalities (Transitory Provisions) Second Order, 1959, and it is contended on their behalf that -
(1) Section 301 of the Act is ultra vires and void, and
(2) Section 3, Sub-section (iv) of the Rajasthan Municipalities (Transitory Provisions) Second Order of 1959 is inconsistent with the provision of Section 9 of the Act and it is therefore invalid.
It is prayed that the Sub Divisional Officer, Prabat-sar should be restrained from acting under Section 3(iv) and (v) of the said Order for the reason that the aforesaid provisions of law under which they are being proceeded with are invalid,
2. The learned counsel for the petitioners has referred to the decisions of the Supreme Court in In re Article 143, Constitution of India and Delhi Laws Act (1912) etc., (Special Reference No. 1 of 1951); AIR 1951 SC 332. Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 465, Rajnarain Singh v. Chairman, Patna Administration Committee, Patua, AIR 1954 SC 569 and Milap Chand v. Dwarka Das, AIR 1954 Raj 252. It was urged by the learned counsel that the principles laid down by the aforesaid authorities are that a Legislature is not competent to delegate its essential functions to a subordinate authority, or to the executive, or any other subordinate authority, and as in the instant case the Rajasthan Legislative Assembly has delegated such essential functions by virtue of Section 301 of the Act, the said provision of law is invalid. In the next place, it was contended that as Section 3(iv) of the Order was inconsistent with Section 9 of the Act, it is invalid to the extent of such inconsistency for the reason that the delegated legislation could not over-ride the provision of the main Act under the authority of which such legislation was made.
3. Section 301 runs as follows:
'301.--Transitory provision. -- For the purpose of facilitating the transition from the provisions ot the laws repealed by Section 2 to those of this Act, the State Government may, by order published in the official Gazette,
(a) direct that this Act shall, during such limited period as may be specified in the order, have effect subject to such adaptations, alterations and modifications as may be so specified;
(b) give such directions as appear to it to be necessary ior the removal of any difficulty that may arise in enforcing this Act; and
(c) make such other temporary provisions for the purpose aforesaid as may be specified in the order:
Provided that the State Government shall not exercise the powers conferred by this section after the constitution of the first board under this Act'. In order to appreciate the scope of Section 301, it may be useful to refer to Section 2, of the Act which relates to repeal and savings and is as follows:
'2. Repeal and Savings.-- On this Act coming into force, the laws and enactments specified in the First Schedule appended to this Act shall be repealed:
(a) such repeal shall not affect the validity of invalidity of anything already done or suffered or any action already taken under any of the said laws or enactments or the rules, bye-laws and regulations thereunder; and
(b) all municipal boards, corporations, councils, town boards or other municipal authorities established under any of the said laws or enactments shall be deemed to be municipal boards established under this Act and all municipalities constituted, members nominated, appointed or elected, committees formed, limits defined, appointments, rules, orders and bye-laws made, notifications and notices issued, taxes imposed, contracts entered into and suits and other proceedings instituted under the said laws or enactments or under any laws or enactments thereby repealed shall, so far as may be, be deemed, unless the State Government directs otherwise, to have been respectively constituted, nominated, appointed or elected, formed, defined, made, issued, imposed, entered into and instituted under this Act'.
4. Before proceeding to examine the validity of Section 301, we would like to refer to the authorities referred to by the learned counsel which lay down the scope within which delegated legislation is permissible. The subject has been thoroughly discussed by the Supreme Court in AIR 1951 SC 332. The judgment of that case is voluminous. The conclusions arrived at in that case were precisely summed up by Bose J. in AIR 1954 SC 569, as under :
'Because of the elaborate care with which every aspect of the problem was examined in that case, the decision has tended to become diffuse, but it one concentrates on the matters actually decided and forgets for a moment the reasons given, a plain pattern emerges leaving only a narrow margin of doubt for future dispute.
'The Court had before it the following problems. In each case, the Central Legislature had empowered an executive authority under its legislative control to apply, at its discretion, laws to an area which was also under the legislative sway of the Centre. The variations occur in the type of laws which the executive authority was authorised to select and in the modifications which it was empowered to make in them. The variations were as follows:
(1) Where the executive authority was permitted at its discretion, to apply without modification (save incidental changes such as name and place), the whole of any Central Act already in existence in anypart of India under the legislative away of the Centre to the new area:
This was upheld by a majority of six to one. (2) Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances:
This was also upheld, but this time by a majority of five to two,
(3) Where the executive authority was permitted to select future Central laws and apply them in a similar way:
This was upheld by five to two,
(4) Where the authorisation was to select future Provincial laws and apply them as above. This was also upheld by five to two.
(5) Where the authorisation was to repeal laws already in force in the area and either substitute nothing in their places or substitute other laws, Central or Provincial, with or without modification:
This was held to be 'ultra vires' by a majority of four to three.
(6) Where the authorisation was to apply existing laws, either Central or Provincial, with alterations and modifications; and
(7) Where the authorisation was to apply future iaws under the same conditions.
The views of the various members of the Bench were not as clear cut here as in the first five cases,..
After discussing the views of the various Judges In AIR 1951 SC 332 the learned Judge concluded by observing, as follows:
'In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set nut above; it cannot include a change of policy'. We may also refer to the following observations in AIR 1954 SC 465 which throw light as to what essential legislative functions cannot be delegated by the Legislature to an executive or a subordinate authority:
'The Legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and ot formally enacting that policy into a binding rule of conduct'.
5. We would now proceed to examine Section 301 in order to see whether it is hit by the principles laid down in the authorities referred to above. In thefirst place, the authority delegated to the Govern- ment under Section 301 is of a transitory nature as ex-pressly mentioned in the heading of the section. Secondly, the purpose for which orders under Section 301 were to be made by the Government has been specifically stated in the body of the section by the words, 'For the purpose of facilitating the transition from the provisions of the laws repealed by Section 2 to those of this Act''.
Thirdly, these words also lay down the scope within which the Government can make orders. The intention of the Legislature appears to be that the Act was ultimately to prevail but in order to bring it in operation, it was considered necessary that the Government should be authorised to issue orders so as to bring the old boards or the boards that had not come into being under the laws thereby repealed in a position to function under the Act.
Fourthly, a limitation has also been put over the power of the Government by proviso to Section 301 of the Act and the Slate Government has been restrained from exercising its powers under Section 301 the moment the first board is constituted and starts functioning under the Act. Lastly, it may be noted that though tile laws that were mentioned in the first schedule to the Act were repealed, yet the municipal boards, corporations, councils, town boards and other municipal authorities thereby established were continued and were deemed to have been constituted under the Act, but in some cases those authorities were not in a state to start functioning under the Act unless some transitory provisions were made having regard to the circumstances of individual cases. The Legislature, therefore, left these functions to the Government by Section 301.
The policy was clearly laid down in Section 301 in pursuance of which the Government was authorised to make orders. The making of orders under Section 301 is a matter of detail that was left to the Government to be performed in accordance with the general policy that had been clearly enunciated in the Act. We cannot accept the contention of the learned counsel that the Legislature failed to lay down its policy for the guidance of the Government or that it delegated its essential legislative power to the Government. In our opinion, Section 301 is not hit by the principles enunciated in the Delhi Laws Act case, AIR 1951 SC 332 or in the decision in Harishankar Bagla's case, AIR 1954 SC 465.
6. At the time the Act came into force, 15 members of the Municipal Board, Makrana had been elected and the old Board had ceased to exist on account of its term having expired. The new Board could not start functioning ior the reason that two members, who had to be nominated by the Government, were not so nominated. In order to complete the constitution of the Makrana Municipal Board so as to bring it into a position to function under the Act, it was necessary to fill in the two vacancies ot nominated members. Under the old Act those vacancies could be filled by nominations but after that Act had been repealed, those seats could not be so filled and to meet such a situation the Government had to make and did make an order under Section 301, and thereby provided for filling in of the vacancies by Section 3, Sub-section (iv) of the Rajasthan Municipalities (Transitory Provisions) Second Order, 1959.
Thus, in place of the Government nominating the members, it was left to the elected members of the Board to fill in the vacancies by co-option, one from the scheduled castes or the scheduled tribes and the other from the female sex. The said provision of Section 3, Sub-section (iv) cannot be regarded outside the scope of Section 301, for the Government thereby provided a quick and suitable method of constituting the Board at its earliest in consonance with thespirit of the new Act. The learned counsel conceded that co-option of a female member under Section 3(iv) of the Order was in accordance with the provision of Section 9 of the Act.
However, as regards the filling in of the vacancy of a member of the Scheduled Castes or the Scheduled Tribes, it is contended that the mode provided by Section 3, Sub-section (iv) of the Order is inconsistent with the spirit of Section 9, which provides for holding of elections subject to reservation of seats for members of the Scheduled Castes and Tribes. It may be pointed out that the provision of Section 9 comes into play only in the matter of the holding of elections for constitution of a fresh board under the Act and it does not apply to the case of a Board in the situation of the Makrana Board. For such a board the Act left it to the Government to complete its constitution and to bring it in a position to be able to function under the Act.
Thus, there is no conflict between Section 9 of the Act and Section 3(iv) of the Order. The two provisions are intended to meet two different contingencies and one cannot be substituted for the other. We may point out that though seats have been reserved for the Scheduled Castes or the Scheduled Tribes under Section 9 in proportion to their population in the area oi the local authority, this did not affect the constitutionality of the existing boards which were functioning on the date the Act came into force. Had it been the intention of the Legislature that the principle underlying Section 9 should be uniformly followed even in a case of the type of Makrana Board, it would not have continued the existing boards that were formed under the repealed Acts.
In case the principles underlying Section 9 are followed in the instant case, the elections already held would have to be set aside and fresh elections shall have to be arranged, but this would be contrary to the provision of Section 2 which contemplates that the elections already held should be deemed to have been held under the Act. Thus the principle underlying Section 9 cannot be applied to a case, like the present one. In this view of the matter, Section 3(iv) of the Order cannot be regarded to be inconsistent with the provision of Section 9 of the Act.
7. The petition fails and is dismissed summarily.
8. Mr. Lodha has prayed for leave to appeal tothe Supreme Court on the ground that a question re-garding validity of Section 301 of the Act is involved andthe point is of some importance. We do not thinkhe has been able to make out a prima facie case inhis favour. It cannot, therefore, be regarded to bea fit case for leave to appeal to the Supreme Court.