DHOOM STNGH

\' '•

PRAKASH CHANDRA SETH[ & ORS.

February 20, 1975 [M. H. BEG, A. AlAGIRISWAMl AND N. L. UNTWAL!A, JJ.]

tprcsent~lon of /'copfc Act 195l-Scctio11 81(3), 86(1)-116-A if a11 l'iecllon pet1t1011a co/111.m-e/y or frm1du/e11tly rcfrai11 from prosecuting tlie appea! whether a11otlzc1 l'Otl'I' can apply to proceed \\'ith the petitio11er-l11terpretatw11 of .lfat11te-Lacr111a.

Respondent No. 1 was elected to Madhya Pradesh legislative Assembly.

Third respondent filed an Election Petition for declaring the election of tht: first

re~nden~ v<; iid.

Respondent No. 1 ade a1~ .application to _the High Court raismg obJect10n that copy of the election pettuon and the affidavit served 011 him were not signed and that it amounted to non-compliance with section 81 (3) of the Representation of People Act. 1951, and the election petition was liable to be dismissed under section 86(1 ). Several persons including appellant intervened to say that respondent No. 3 had colluded with respondent No. I and that as a matter of fat there was no non-compliance with the requirement of section 81 ( 3).

The appellant offered to sub>tantiate bis allegation.

The intervention applica tions fileC: were rejected by the High Court. The High Court held that there was non-compliance with section 81 (3) and, therefore, dismissed the election petition.

The appellant filed an appeal to this Court under section 116-A of the Act. In the alternative, he prnyeJ to treat it as the petition under Article 136.

This Hon'ble Court allowed the appeal to treat it as a Special Leave Petition and granted Special leave. The appellant was n!5t permitted to challenge the order of the High Court made under section 86. He was, however, allowed to challenge the refusal of the High Court to allow him to intervene.

The appellant contended :

( I )

(2)

That in substance and effect the action of the third respondent w"s. tantamount '.o withdrawal of his election petition and in that view of the matter the procedure prescribed in sections 109 and 110 of the Act ought to have been followed and given effect to.

That in any view of the mtter resr>ondent no. 3 should riot have been permitted to walk out of the field without an investigation of the facts allegeJ by the appellant which if found true, would have shown that there was no non-compliance with the requirement of tl1e law and the election petition was not liable to be dismissed under section 86.

(3) Ill an election disrmte the whole constituency is interested and any elector of that cons•itl'ency from which a candidate had bren returned and whose election has been challenged can intervene in the matter.

HELD : It is difficult io acceot that in ubstance and in effect th~ action of respondent No. 3 even assuming that it was collusive or fraudulent had the effect of withdrawing his election petition. The legislature has chosen to make special provisions for the continuance of the election petition only in ca-se of it< withdrawal or abatement. It is not necessary for this Court to express any opinion as to whether omission to do so is deliberate or inadvertant. Tt may be a case of Casus omis<.us. It is a well-known rule of -construction of statu'.es that a Statute, even more tha.n a contract. must be construed, ut res magis va/est auam pee11:. <O 'hat the intentions of the Legislature canno~ be treated a< vain or left to ope•ate in the <iir.

Another consequence of this rnle is that a statute cannot be ex•ended to meet a case for which provision has clearly and undonbtedly not been made. [593H; 5998-Dl

Shed!ta11 Singh v. Mohan Lal Gautam ( 1969) 3 S.C.R. 417 disti•nguished.

HELD FURTHER : There is undoubtedlv a lacuna in the Act because it mkc> provision when an election petitioner is allowed to withdraw but makes no

 , uch proviion if he just r.efuses to prosecute it. However, in such conti11g1ncy, if thought neces>ary it is for the Legislature to intervene. The Court w~1s helpk<s. The appeal was dismissed. [6000]

C1v1L APPELLATE JURISDICTION: Civil Appeal No. 1560 of 1973. i .

From the Judgment & Order dated the 23rd January, 1973 of thc Madhya Pradesh High Court in Election Petition No. J 3 or 197~.

S. P. Gupta, S. S. Khanduja and E. C. Agarwala, for the Appel- 'J:tnt .•

Ram P1•11jwmu, C. S. S. Rao, iJ. N. Mishra, J. 8. Dadadia11ji am!

O.C. Mathur, for Respondent No. I;

Respondent No. 2 appeared in person.

The Judgment of the Court was delivered hy

IJNTWALIA, J.

Respondent No. I in this appeal was elected_ a Member of the Madhya Pradesh State Legislative Assembly from the Ujjain North Assembly Constituency. The third respondent filed an eiection petition on, 25-4-1972 in the Madhya Pradesh High Court for declaring the election of the first respondent void.

After service nf the notice of the election petition alongwith the enclosures thereto.

Respondent No. 1 made an application on 28-11-1972 to the Higl1 Court raising an objection that out of the copies of the election pcti- 1ion, list of Annexures, Anncxurcs and Affidavits served on him, only the anncxurcs were signed by Respondent No. 3 and the rest were not signed by him. Respondent No. I submitted to the Court that there

was non-compliance with the requirc; ment of subsection 3 of Section i'1 of the Representation of the People Act, 1951-(hcreinafter called the Act) and hence the election petition was liable to be dismissed under section 86 (I ) . A learned single Judge of the High Court to whom the election petition had hecn transferred for disposal heard

the matter on several dates along with some other miscellaneous petitions filed in the case. Time was granted to learned counsel for Respondent No. 3 to resist the prayer of Respondent No. 1 for dismissal . F of the election petition. Eventually learned counsel for respondent withdrew from the case and the respondent presented his case in person to the Court.

Several persons in the meantime intervened to say that Respondent No. 3 had colluded with

Re~'10Ildent No. 1, as a matt.er of fact there was no non-compliani:e with the requirement of section 81(3) of the Act, and therefore, the election petition could not be dismissed under section 86.

Tiuy :1skcd the Court to allow them to intervene. Praver of one suc:h person was refused by the High Court on 12-1-1973. Finally when the order on the objection of Rep::mdent No. 1 was going to be made on 23-1-1973, the appellan, t came forward to make an application for intervention. He stated that Respondent No. 3 in colluion with Respondent No. :l had admitted that the copies of the petition were

not attested to be true conies and were not signed by him. on enquiries he had come to know that all 'the copies of the petition and the annexures were duly attested to he true copies of the petitions

G '

DHOO~I S!~Gll \'.. P. c. SETH! (Untwalia, .!.) 597

.111c.i were signed by Respondent No. 3, it was not in the interest 'ot justice to dismiss the election petition a~ a result of the false and collw; ivc stand of Respondents 3 and 1.

The appellant offered to substantiate hL~ allegation and prayed for a week's time to do the

ame. In the meantime passing of the order on the petition of Re~ pondent No. I was asked to be deferred.

'I11c High Court ask.:d the appellant's counsel who was none eise than the counsel of Respondent No. 3 and who had withdrawn from representing him, to show under what provision of the Act or any other law an elector of the Constituency as the appellant was, had a right to intervene in the case.

Since the appellant's Advocate was unable to show it the prayer of the appellant was rejected by an order passed on 23-1-1973.

Later on the same date by a reasoned tlmf lonp; order the ob_jection of Respondent No. I was allowed on the basis of the copies of the various papers as they were before the Court. It was held that there was non-compliance with the rc4uiremcnt of section 81 ( 3) of the Act and hence the elecuon petition was dismissed by the separate order passed on 23-1-1973.

The appellant presented-an appeal to this Court under section l I 6A of the Act along with a petition lo pennit him to file the

tppeal. In the alternative a prayer was made to treat the petition of appeal as a petition under Article 136 .of the Constitution of India fur seeking special leave of this Court, to file an appeal from the order refusing the appellant's prayer made in his petition dated 23-1-1973.· A Bench of this Court upon hearing counsel for the appellant and Respondent No. 1 permitted the converting of the appeal

o[ the appellant into a special leave petition and granted special kave by its order dt. 11-10-1973. It also directed the consideration 0[ the question at the time of the hearing of the appeal whether an appeal would lie to this Court in the circumstances of the case.

Mr. Ram Panjwani, learned counsel for Respondctit No. l point..:d <>ut that special leave was granted on a limited question and at the "utsct it had to be decided whether the appellant's appeal is compeknt. Mr. S. V. Guptc, learned counsel for the appellant ubmitted

that in this ver.y appeal it had to be decided whether the appellall1 had a locus standi to prefer an appeal to this Court under section l 16A of the Act from the order of the High Court dismissing the election petition of Respondent No. 3 under section .86. In any view of the matter, counsel further submitted, the present appeal was ..:ompetent from the order of the High Court rejecting the appellant'~

prayer made in his petition dated 23-1-1973.

Although in view of the explanation appended to sub-section ( 1 ) o[ Section 86 of the Act au order of the High Court dismissing the election petition under the said sub-section is to be deemed to be an order made under clause (a) of Section 98 and hence appealable under section 116A, learned counsel for the appellant found it rlifficult t() satisfy us that the scope of this appeal was to find out whether th" appellant was a person who had a right to file such an appeal or in anv event he .had such light. The appellant was not a pa11y

•to the election petition nor was he allowed the intervention by the .High Court.

In this appeal, therefore, there is no 9uestion of permitting the appellant to challenge the order of the High Court made . under-section 86 of the Act on merits,

There is, however, no doubt that in this appeal it is open to the

.ap~Jlant to assail the order made by the High Court on bis petition filed on 23-1-1973. To do so it was argued for the appellant :-

( 1) That in substance and effect the action of the third :respondent was tantamount tp withdrawal of his selection petition and in that view of the matter the procedure prescribed in sections 109 and 110 of the Act ought to have been followed and given effect to ..

(2) That in any view of the matter Respondent No. 3 should not have been permitted to walk out of th~ field without an investigation of the facts alleged by the appellant, which if found true, would have shown that there was no non-compliance with the requirement of the Jaw and the election petition was not

liable to be dismissed under-section 86.

( 3) In an election dispute the whole Constituency is interested and any elector of that Constituency from which a candidate had been returned and whose election has been challenged can intervene in the matte!'.

We do not think that any of the points urged on behalf of the ; appellant is fit to succeed.

Chapter II of the Act containing sections 80 to 84 deal with presentation of election petitions.

C"hapter III starting from sr.ction 86 is headed "Trial of Election l:'etitions". Then comes Chapt€:r IV

inr, orporating sections 109 to 116 providing for the procedure !o be followed in case of withdrawal and abatement of election petitions.

Under sub-section (1 ), of section 109 an election petition may be wit.hdrawn only by leave of the High Court. When such an applica tion is' made notice is to be. given not onliy to the parties to the election petition but it is to be published in the official gazette also. sub-section (2.) of section 110 enjoins upon t.1e High Court not to allow . the withdrawal application if it has been induced by any bargain or consideration which ought not to be allowed. If the withdrawal application is granced then section 110(3)(c) permits a person who might himself have been a petitioner in the election petition to apply to be substituted as petitioner in place of the party withdrawing within 14 days of the date of the publication of the notice in the official gazette.

Similarly on the abatement of an election petition on the death of the petitioner or petitioners as the

<:aS(~ may be any person who might himself have' been petitioner can apply to be substituted under sub-section (3) of section 112.

J[t is .<Jifficult to accept the contention put forward on 'behalf of the :appellant that in substance and in . effect the action of Respondent

DHOOM SINGH \', P. C, SETHI (Untwa/ia, .I.) 599

No. 3, even assumiu~ it was collusive or fraudulent, had the effect of. withdrawing his election petition by him. It may also be added tha~;

here was. no such stand taken by the appellant in his. tition ~~Cl,. m the High Court on 23-1-1973.

None of the prov1s1ons relating, to withdrawal of election petition was attracted in this case. . The Legislature in its wisdom has chosen to make special provi s1?ns for the continuance of the election petition only in case of its withdrawal or abatement. It has yet not thought it fit to make any provision in the Act permitting intervention of an elector of the Constituenoy in all contingencies of failures of the election petition either due to the collusion or fraud of the original elcction peiitioner or otherwise.

It is not necessary for this Court to express any opinion as to whether the omission to do so is deliberate or inadvertent.

It may be a case of Casus omissus. It is' a wellknown rule of construction of statutes that "A statute. even more than a contract, must be construed, ut res magis va/etll qu41tt pereat, si that the intentions of the legislature may not be treated. as vain or left to operate. in the air." A second consequent of this (Ule is tha't "a statute may not be . extended to meet a case for which provision has clearly and undoubtedly not been made''-Scc pages 69 and 70 of Craies on Statute Law-,6th edition.

It seems plain that the High Court is enjoined to dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 of the Act.

In the true cases of non-compliance with the said provisions of law a question of intervention by another person may not arise. But there may E be a case, as the instant one was alleged to be (we are e:'!:pressing • no opinion of ours in. this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under section 8-6(1).

Even in such a situation we find no provision in the Act under which the High Court could permit a person like the appellant to intervene in F the matter or to .substantiate his allegations of fraud or collusion between the election petitioner and -the returned candidate. It is. difficult to press . into service the general principles of law governing. an election petition as was sought to be done on behalf of the appellant for his intervention in the matter. If there be any neccssi ty of avoiding any such situation as the present one was said to b.\! it is for the legislature to intervene. and make clear and express prov1- G sion of faw for the purpose.

Mr. Gupte in support of his argument placed reliance upon a passage which occurs at page 421 in the judgmnt ?f this court in .

Sheahan Singh v. Mohan Lal Gautam(!) and which 1s to the following effect:

"From the above provisions it is seen that in an plection H petition, the contest is really between the O)nsituency on the one side and the -person or persons corr•plamed of on -·(i)- [3) S.C.R. 417.

the other.

Once the machinery of the Act is moved by n candidate or an elector, the carriage of the case does not entirely rest with t_he petitioner. The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not atllowcd to avoid the consequences of their misdeeds."

15ut the said obs.:rvations cannot and were uot meant to t1av.:I beyond the realm of the contingencies of withdrawal and abatement of an election petition.

fo Dµryodha11 v. Silaram and otliers( t) oue o( the learned Judge.-. coCllltituting the Full Bench in his separate judgment pointed out at

page 14 of a similar contingency arising in the case of dismissal of an election petition for default of appearance of the election petition.er. The argument that in such a situatio, n "the intention of the legislature that: a petition should not fail by reason of any bargain

lll' collusion between the election petitioner and the successful candidate would be frustrated" was repelled on the ground "There

i~ undoubtedly a lacuna in the Act, because it makes provision when a11 election . petitioner is allowed to withdraw, but makes no such provision if he just refuses to prosecute it.

But that reason would nuc, a.s pointed out by Grover, J. in Jugal Kishore's case AIR 1956 l'unj 152 (supra) be a sutlicicnt reason to construe the provision~ beyond the purvww of their language.'' This is another type of contingency, where if thought necessary." it is for the Lcgislatur~ to

inkrvcnc. The Court is helpless. r n our judgment, therefore, none of. the contentions raised tin he half of the <!ppellant is fit to be accepted as sound.

The appeal fail!i and is dismissd. But in the circumstances we shall 1n:ikc nP , 1rder as to costs.

P H.P.

Appeal dis111is.1ei/.

1 tl A.LR. 1970. Allahabad I.

I:.

DHOOM STNGH

PRAKASH CHANDRA SETH[ & ORS

February 20, 1975

M. H. BEG

section 81

section 86(1 )

section 81

section 81

section 116

Article 136

section 86

sections 109 and 110

section 86

1969) 3 S.C.R. 417

S. P. Gupta

S. S. Khanduja

E. C. Agarwala

Ram P1•11jwmu

C. S. S. Rao

iJ. N. Mishra

O.C. Mathur

IJNTWALIA

section 3

Representation of the People Act, 1951

section 86

section 81(3)

section 86

section 81

Article 136

Constitution of India

Ram Panjwani

S. V. Guptc

Section 86

Section 98

section 116A

section 86

sections 109 and 110

section 86

Chapter II of the Act

sections 80 to 84

sections 109 to 116

section 109

section 110

section 110(3)(c)

section 112

DHOOM SINGH

section 81

section 82

section 117

section 8

Gupte

Grover

Jugal Kishore


( '> .I

THE DISTRICT COUNCIL, UNITED KHASI-JAINTIA HILLS,

SHILLO~G AND ANR.

I'.

KA DREPSJLA LYNGDOH OF

SVLLAI-U-LOR,

MYLLIEM,

MYLLIEM SIEMSHIP, UNITED KHASI-JA1NTJA HILLS AND

ORS.

February 2\' 1975 [K. K. MHHEW, v. R. KRISHNA IYER A!\D A. c. GUPTA, JJ.]

Co11stir111ion of India, 1950, Schedule VJ, Paras 6 and 20 Scopeof-Whether l'illai;<' of Mall'kher is included within tile Sl1i/lo11g Municipality.

Th~ Exccu111c Com111i11ce of the District Council, United KhasiJaintia Hills

dircted thut no new construcllon or re-constr.u'ction of stalls should be under taken in Burn Bnznr. The respondents, who were. thus p1ohibitcd from construe

ting their shops !\led the writ petitions in the High Court chnllenglng the direc:Uon.

Schedule VI of th~ Constitution shciws thnt tho United Khusi Jalntia Hills District is a tribal area within the State of Megbalaya, The territories rom priseu:wi1hin this district include Bara Bazar area, In view of.para 6 o{ the Scbetlule which enumerates the powers of the District Council, the District.

Col, ltlcil ha~ power to manage the Bara Bazar market and issue the impugned ord.ers.

But oara 20 of the Schedule states that if any part of the area com prise.<.! in tile district were included i~ the municipality of Shillong, before the district came into being the powers conferred on the District Council by para 6 of the Schedule would not be available to the Council in respect of that area.

The High Court found that the village of Mawkher which comprises Bara Baza'". wns .a pmt of the muni:ipality of the Shillong on the basis of ( 1) a .. 1Jo!iflc.i-tion d'c1ted hnuary 16. 1934. (2) <:n extrnq from •he Demand and Bill

'Reistr of the '.Shillong Municipality for the year 1957-58 and (3) the Khasi

Siemship.1 (1\pplication of Law.,) Order. 1949, and held that the District Council had no jtfrisdiction. adminis1rative or otherwise over Bara Bazar and quashed tl1e Impugned orders.

Allowing the appeal to this Court,

HELD : (I) The 1934 notification show> that what was ceded by the Siem of l\1vlli"m when he ceded Mawkher and other villages to the British Government was only the jurisdiction necessary for the municipal admi:1:st1 :1tion in nccordance with the Assam Municipal Act. 1923. and the Governor General in Council issued an order extending the 1923 Municipal Act to those Yill:igcs. The Order orovided that the villages were to be deemed as a municipality designated the Shillong (Administered Areas) Municipality.

Thus the villages were ceded for the specified purpose of municipal administration only and though the provisions ot the Municipal Act were made applicable to the ceded villages they were never included within the territorial jurisdiction of the Shillong municipality, but were deemed to he a distinct municipality-the Shillong (Administered Areas) Municipality. This shows that the villages were not intended to b' merged in the Shillong Municipaliiy though the officers of the municinalitv were to exercise similar powers and discharge like duties in the cecl:-d ar:o,,.:, Chapter II of the Municipal Act which empowered the provincial g<wernmcnt to include within a municinality any local area in its vicinity was not made :1:irlicable to the villages. There. is also no evidence that these territor'c; were •.uhs~uenlly merged in th,· Mu.nieirality of Shillong.

[6D5F 60(1","\

(2) Th' Demanc.1 and Bill Register of the Shillong municipality refers to Souih F, r; r Mawkher as a warJ of the Shillong Municipality.

But it does not mean :hnt Mawkher or South East Mawkher was mcluded in the territorial juris,!'c'.icn of the 1\fHnici!lalitv. It onlv means that the District Council. instead of takin.g ur the administratior, allowed existing arrangements to continue in some places for some time.

[6%B-C] 8-470 Sup. Cf/75

(3) The Khasi Siem.ships (Application of Laws) Order, 1949 refen1 to .. Shillong Admini.stered Areas" by which is meant 'so much of the areas foir the time being comprised within the municipality of Shillong' as forms part of the

United Khasi Jaintia Hills District. and the lirst Schedule to the Order ddines the "Shillong Administered Areas" as comprising the areas covered by the Shillong (Administered Areas) Municipality which includes Mawkher. llut, in view of the notification dated January" 16, 1934, and the absence of any provision effecting merger with the Shillong Municipality the expression 'comprised within the munidpahty of Shillong,' can only mean that part of the district in whkh :he officers of the Shillong municipality ,; ontinued to exercise powers and discharge duties as before. [606C-EJ

Civ11 APPELLATE JURISDICTION : Civil Appeals Nos. 1475 & 1476 of 't 969.

From the judgment and order dated the 4th Decemb2r, 1967 of

the sam & Nagaland High Court in Civil Rule Nos. 264 and 328 of c 1966.

D. N. Mukheriee, for the appellant. .i. K. Sen 1md S. K. Nandy, for Respondent No. I.

G, S. Chatterjee, for Respondent No. 2.

The Judgment of the Court was delivered by

GUPTA, J. The only question arising for decision m these two appeals, brought on certificates granted by the- Assam and Nagalnnd High Court, is whether the jurisdiction of the. District Council of the

United K.hasi-Jaintia Hills, e.xtends to the area called .B\ll'a Bazar in village Mawkhar in Shillong.

The question arises in this way.

The first respondent in each of these appeals had a shop in Bara Bazar, which is a well-known market area,,, and both these shops were destroyed by fire.

In December 1964 the Siem of Mylliem permitted Ka Tiewmon Kharkongar, the first riespondlent in Civil Appeal No,. 1476 of 1969, to com; truct on the cd site a shop similar to . the one she had which was gutted by fire.

A similar permission was given in May 1965 to Ka Drepsile Lyngdob, the first respondent in Civil Appeal No. 1475 of 1969. On July 19, 1965, however, the Siem of Mylliem by a written order asked respm1dent Ka Tiewmon K.harkongar not to proceed with the constructiion of the shop; it was stated in the order that the Executive Committee of the District Council, United Khasi-Jaintia Hills, had directed that no ruw construct.ion, reconstruction or renovation of stalls should be undertaken in Bara Bazar unless approved by the Executive Committee and that all constructions in progress should be stayed. Respond4:nt Ka Drepsila Lyngdoh also received a similar communication from the Siem of Mylliem on May 16, 1966. Both these -respondents filed writ petitions in the Assam and Nagaland High Court questioning the autho1rity of the Executive Committee of the District Cow1- , cil to make any <>rder in respect of the Bara Bazar area which thf~Y contended was outside the District . Council's jurisdiction. The High COurt disposed of' the two writ petitions by a common Judgment. TI1e High, Court found that the District Council had no jurisdiction, admi- . nistra1ive or otherwise, over the area in question, and quashed the

.f'

orders by which the respondents were prohibited from con$tructing their shops in that area. From the decision of the High Court, the District Council, United Khasi~Jaintia Hills, Shillong, and its Executive Committee have 'preferred the instant appeals.

The United Khasi-Jaintia Hills District is a tribal arra within the State of Meghalaya as will appear from Part II, item I of the Table appended to paragraph 20 of the Sixth Schedu!e of the Constitution.

Article 244(2) of the Constitution lays down that the provisions . of the Sixth Schedule shall apply to the administration of these tribal areas.

Paragraph 1 of the Sixth Schedule provides inter alia that the tribal areas in each item of Parts I and Il and in Part III of the Table appended to paragraph 20 of this Schedule .shall be ari'. autonomous district. It is provided in paragraph 2 of the Schedule that each autonomous district shall have a District Council which would be a body corporate, vested with the power to administer the District. Paragraph 6 of the Schedule which enumerates some of the powers of the District Council states inter alia that the District Council for an autonomous , district may establish, construct, or manage primary schools, dispensa ries, markets, cattle pounds, ferries, fisheries, roads, road transport and water-ways in the district. There is no dispute that the territories comprised within the United Khasi-Jaintia Hills District include the Bara Bazar area.

There could be also no dispute, in view of paragraph 6 of the Schedule, as to the power of the District Council to manage the Bara Bazar Market and to issue for that purpose the orders impugned in these two cases, if the provisions of the Sixth Schedule to which we have so far referred were the only relevant provisions for consideration.

However, paragraph 20 of the Schedule has a proviso which states that : "for the purposes of clauses (e) and (0 of subparagraph (1) of paragraph 3, paragraph 4, paragraph 5, paragraph 6, sub-paragraph (2), clauses (a), (b) and (d) of sub-paragraph 3 and sub-paragraph (4) of paragraph 8 and clause (d) of sub-paragraph

(2) of paragraph 1.0 of this Schedule, no part of the area comprised within the municipality of Shillong shall be deemed to be within the United Khasi-J}l.intia Hills District." Therefore, if any part of the area comprised in the United Khasi-Jaintia Hills District were included in the municipality of Shillong before the said District came into being, the powers conferred on the District Council, inter alia. by paragraph 6 of the Sixth Schedule woajd not be available to the Council in rest of that area. The question then comes to this, did the municipality of Shillong include within its limits the Bara Bazar area ?

The High Court has found that village Mawkhar which comprises Bara Bazar was a part of the municipality of Shillong.

The Judgment .of the High Court records the fact that Mawkhar was originally part of the Kingdom of the Siem of Mylliem.

The Judgment also refers to a notification dated the 16th January, 1934 showing that Mawkhar and certain other villages were ceded to the British Government by the Siem of Mylliem. The relevant portion of the notification is as follows : ·

"No. 44-1, dated New Delhi, the 16th January 1934 . . Whereas the Siem of Mylliem in the Khasi and Jaintia Hills

has ceded to the British Government' the jurisdiction neccs-

A sary for the municipal administration in accordance with . the Assam Municipal Act, 1923, of the villages of l'-1awkhar,

Laitumkhrah, Mission Compound and Jaiaw South-East

~.lawkhar anc.l Garikhana, Mawprem anc.l Jhalupra, a Laban,.

~ ; i:nparing cun1 i\1ad.:in Laban,. Malki anti Haang Umkhra. situate within the hounc.laries described in the Schedule annexed hereto. 'Ubjcct to the maintenance of all other his

right" antl powers aS Sk:in of Myllicm thcn:in and with th~'

-rli:.-~-at; on that the rivers Un1shipi and U111khra, so far as

they arc within the. aloresaic.l villages, shall remain the propmy or the Myllicm State :- .

 In exercise of this jurisdiction and of. the powers con;· !erred by the Indian (Foreign Jurisdiction) Order in c.'oun- .:il. I 902, and of all other powers cnablin~ hi111 in. that b~·

hair. and in supcrscssion or the Notification or the Government of India .in the Foreign Department No: 31634'-D .. <.lated the 17th September 1913, and of all notifications amending the <1ame the Governor General in Council is pleased to dircc, t as follows :-

1. All the provisions of the Assam Municipal. Act, 1923. tAssarn Act I of 1923), as hcrcinbdore or hcrernafter amended and as in force for'thc ti1nc being i1 the Municipality. of Shillong. and :ill notifications. orders. schemes,

rUls, forn1o;; or bye-la\VS 111adc or hereafter to be mad!.! for

the 'aid Municipality shall subject to the exceptions hereinafter specified and unless otherwise declared by the Govern- E

h~·; nt \)f r\ssari1, be in force ln the said village in so far as the

sam~ may he applicab!e thereto.

Provitbl that Chapter II ai1d sccti, ms 9. 51. 53. 59 (bl, 59(g),•65. 78. 217 and 218 of the saiJ Act shall not apply t" the said villages and thut clau'c (bl of suhscctlon (;) of <ection 55 or the said Act shall not apply to the Umshirpi and F

ll;1:.hr:1 rivers o far a~ they arc within the said villages.

2. For the purposes of the application of the said provisio11s. Notifications9 orders~ s.chcn1cs, rules for1ns, and bye- IJ\v-..

I") rcrerences. to the Local Government shall be read as

rcfcrcncct? th~.! Govern1ncnt of Asam.

(h) the said vilbgcs shall be deemed to be a municipolity

dcsi2natctl the Shillong (Administered Arca) Municipality. anit C'!cry officer or authority. for the time being ::i.ppointcd br constituted in accordanc.: \Vith_ the Assam Municipal Act, 1923 as amended. to exercise powers or discharge duties within the Municipality of Shillong. shall exercise tho like "powers and discharge the like duties in accordance with the said

Act within the Shillong (Administered Area) Municipalty and shall e dee!11ed to have been duly appomted or constituted m accordance with the said Act.

(c) All sums received by the Municipal Board of the

Municiplity . of Shillong and all fioos paid or levied

m the said villages shall be ;:redited to the municipal fund of the Municipality of Shillong.

1t would appear from this notification that what was ceded to the British Government was only "the jurisdiction necessary for the muni~ cipal. administration in accordance with the Assam Municipal Acf

1923" of certain villages including Mawkhar and the Governor Gene-'. ral in Council was pleased to issue an order extending to the said

villages the provisions of the Assam Municipal Act, 1923 subject to certain exceptions.

The order also provide<.! that for the purposes of the application of the sai~ Act, and the notifications, orders, schemes, rules, forms and bye-Jaws made for the Shillong Municipality which were also made applicable, these villages were to b.:: deemed as a municipality designated the Shillong (Administered Areas) Municipality.

From this notification dated January 16, 1934, and an extract from the Demand and Bill Register of the Shillong Municipality for the year 1957-58, annexed to one of the writ pcti•ion~. wh:ch refers to Soutb- East Mawkhar as a Ward of the Shillong Municipality, the High Court held that Bara Bazar was part of the Shillong Municipal area.

The High Court also relied on the Khasi Siemships (Application of Laws) Order, 1949. This order refers for its purpose to "Shillong Administered Areas" by which is meant "so much of the areas for the time being comprised within the Municipality of Shillong as forms part of the United Khasi-Jaintia Hills District". The first Schedule to the order defines the "Shillong Adiministered Areas" as comprising the areas covered by the Shillong (Administered Areas) Municipality, which includes Mawkhar.

We do not think that the material on which the High Court rdicd )Ustifies the finding that village Mawkh1~ which includes Bara Bazar was part of the Shillong Municipality.

The notification dated the 16th January, 1934 makes it clear beyond doubt that the Siem of Mylliem ceded the villages for the specified purpose of municipal administration only.

It seems to us also clear that though the provisions of the Assam Municipal Act, 1923 ..,_etc made applicable to the ceded villages, the villages were never included within the territorial jufr;- diction of the Shillong Municipality.

The notification itself directed that these villages were to be deemed as a distinct municipality designated the Shillong (Administered Areas) Municipality which shows that they were not intende(, f to be merged in the Municipality of Shillong though the officers and authorities exercising powers or dischargin!!, duties within the Municipality of Shillong were to exercise similar 'powers and discharge like duties in the ceded areas according to a direction contained in the notification.

Chapter II of the Assam Municipal Act, 1923 which. as it stood at the da!c of the notification,

empowered the provincial government to include within a municipality any local area in the vicinity of the same, was not made applicable to the:se villages. There is also no evidence that these territories were subsequently merged in the Municipality of Shillong. After the commencement of the Constitution of India, as paragraph 19 of the Sixth Schedule providc5, the administr2tion of the territories comprised in the United Khasi-Jaintia Hills District vested in the Governor until the District Council was constituted in June 1952. It is' not clear from the material on record whether the District Council took up the entire burden of administration throughout the territories from the beginning or aliowcd the existing arrangements to continu~ at some places for some time.

Th(: extract from the Bill and Demand Register of the Shillong Municipality for the year 1957-5~, referred to in the Judgment of the High Court, seems to suggest th~ second possibility.

Even if this were so., it does not mean that Mawkhar or South-East Mawkhar was inclucled in the t<rritorial jurisdiction of the Shillong Municipality. In viw of the notification dated the 16th January, 1934 which preserves the distinct entity of the ceded villages and in the absence of a:iy provision effocting a merger of these territories in the Municipality of Shillong, reference in the Khasi Siemships (Application of Laws) Order, 1949 to any part of the Khasi-Jaintia Hills District as "comprised within the Municipality of Shillong" must be read to mean that part of the District in which the officers and the authorities of the Shillong Municipality continued to exercise powers and discharge duties as before.

In our opinion, the jurisdiction of the District Council of the Khasi-Jaintia Hills extends to the Bara Bazar area and as such the impugned orders issued at the instance of the appellants to the first respondent in each of these two appeals re6training them from constructing shops in the aforesaid area are not invalid.

fn the result, the appcais are allowed; the Judgment and orders appealed from are set aside and the writ petitions are dismissed. Considering the circumstances or the case we make no order as to costs.

V.P.S Appeals allowed~

THE DISTRICT COUNCIL, UNITED KHASI-JAINTIA HILLS, SHILLONG AND ANR

Schedule V

Schedule VI

Mawkher

Chapter II of the Municipal Act

Shillong Municipality

Shillong

Shillong municipality

Nagaland High Court in Civil Rule

D. N. Mukheriee

K. Sen

S. K. Nandy

S. Chatterjee

I.

G, S. Chatterjee, for Respondent No.

GUPTA

Ka Tiewmon Kharkongar

Ka Drepsile Lyngdob

July 19, 1965

Mylliem

Ka Tiewmon K.harkongar

Ka Drepsila Lyngdoh

May 16, 1966

Assam and Nagaland High Court

United Khasi-Jaintia Hills District

Meghalaya

Article 244(2)

Sixth Schedule

Sixth Schedule

United Khasi-Jaintia Hills District

Sixth Schedule

United Khasi-J}l.intia Hills District

Sixth Schedule

Bara Bazar

Mawkhar

16th January, 1934

Khasi

Assam Municipal Act, 1923

Assarn Act I of 1923

Assam Municipal Act, 1923

Mawkhar

Mylliem

Constitution of India

Sixth Schedule

Mawkhar

Shillong Municipality


M. K. P APIAH & SONS

THE EXCISE COMMISSIONER & ANR.

February 20, 1975

[K. K. MATHEW, V. R. KIUSHN.\ IYER AND P. K. GOSWAMI, JJ.J

.Mvsore Excise Act, 1965, Sections 16, 22 and 23 read with Mysore Excise (D1.ml/ery and Wrehouse) Rules, 1967 and with Mysore Excise (Excise Duties) Rules, 1968-Excise duty. levv of-Removal of arrack fio111 Govemment 1v,1reho11scs after the purchase of the same, ij attracts liability to pay excise duty.

Mvsore xcise Act, 1965, Secs. 22 and 71- Dc/egotion of power to fi.t rates o.f excise duty I~ G?vemment by making rules-Legislarure, if has abdicated Its essen11a/ leu1s/at1re functwn-Rule-making power, whether provides the necessary check.

Karna/aka Sales Tax Act. 1957. Secs. 2, 5' and 19-Levy uf sales tax upon sale of arrack mnde by Government tn licensces-lmPositi011 of liability to sales tax, if covered by Entry 54, List fl, Schedule Vil of the Constitution.

. 'fh~ ppellan~. an excie contractor secured the privilege of vending arrack m retail m certain taluks in the State of Karnataka tor a period of 18 months beginning from 28-12-1967 and ending on 30-6-69.

He purchased arrack from the Government at a tirice of 17 paise per litre and the Government collected besides the sale price of arrack, excise duty, health cess and education cess.

Thti Government also collected sales tax on the sale price of arrack, on excise duty, on health cess and on education cess tor the period from 28-12-1967 to 31-1-1968 and made similar demands for the month of February, 1968 also.· The app6llant and other excise contractors filed writ petitions in the High Court at Karnataka challenging the validity of the levy and collection of exci'e Cluty, educatio11 cess. health ctss and sales tax. The High Court accepted some of the contentions of the appellant, granted him reliefs on that basis but rejected the other prayers.

The appellant has filed these appeals on the basis of certificates granted by the High Court against the order. ft was contended for the appellant (i) that no excise duty can be levied on a licensee in respect of the quantity of arrack purchased by him from Govern ment depots, (ii) that the. power to fix the rate of excise duty conferred under s. 22 of the Mvsore Excise Act of 1965 on the Government was bad for the reason that it was an abdication by the state legislature of its essential legislative

ftnction and (iii) that no sales tax could be levied on the price for sale of arrack since s. 19 of the Mysore Sales Tax Act, 19 57 under which the tax was levied was beyond the legislative competence of the state leislaturc.

Rejecting the contentions and dismissing the appeals, HELD : (i) It is clear from the return filed before the High Court that the Government ourchases arrack from the distillers and keeps it in the warehouses eatablished or licensed under s. 16 and that any removal of arrack after the purchase of the same will attract the liability to pay excise duty. Section 23 provides that excise duty shall be levied on the excisable article issued from a warehouse also. It cannot be said that a warehouse established or licensed under S. 16(e) is not warehouse within the meaning of that expression in s. 23.

[609G:610A]

(ii) The High Court held that the preamble of the At wuld sen:e as a guidance to fix the rates of excise duty.

It cannot be said with certainty that the preamble of the Act gives any guidance for fixing the rate of excise duty.

But that does not mean that the legislature here has no control over the delegate.

In this case, s. 71 of the Act whih provides .for the rule-makine power imposes the necessary check upon the wide power g1ven to the Government to fix the rate. The laying of rules before the legislature provides control ovr delegated legislation. Again the legislature may also retain its control over_ 111 delegate by exercising its power of repeal The power to fix the rate of excise

duty conferred on the Government by s. 22 is valid. [610E-F; 614EPl

Corporatio11 of C11lq11ta & Anr. v. Liberty Ci11e111a, [1965] 2. S.C.R. 477, lla1wrsi D1is v. Slate of Madhya Pradesh, [1959] S.C.R. 427, Municipal Board, l1ap11r v. Ragli11rn1dra Kripal, [ 196n] l S.C.R. 1950, Deri Dmi Gopa/ K, is/ia11

v. S/'ale of P11njab, [1967] 3 S.C.R. 557, Municipal Corporatio11 of Delhi v.

(iii) Section 19 of tbc. Kar.11:1taka Sulcs Tax Act, 1957. makes it clear that notwithstanring anything containe, i in this Act of 1957, the Government :; hall in respect 01 any sale of goods effected by it be entitled to collect by way of tax ; my amount which u rci;:istcrcd dcakr e!Tecting such sale would have been entitled to collect bv way of tnx under the Act. The section is clear that the (]ovcrnmcnt could collect th~ tax on the sule made by it as if it were n rcgis tcrcd dealer, notwithstunding unything contained in s. 2 or s. S.

The i; ection ll, clf creates a ri11ht in the State to recover and an oblintion on the purchaser from the State to iiny the umount.

Any imposition of liability or obligu:tion in respect of sale or purchase of goods will lie covered by Entry S4 of Lint II of tbe Seventh Schedule of the C<institution. Section 19 i" therefore, not 11/tru l'ires the powers of the legislature. [615ACJ

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1883 to

1886 of 1969. o

From the judgment & Order dated the 12th July, 1968 of ihe Mysore High Court in W.P. Nos. 949, 955, 956 and 958 of 1968.

K. Srinivasan and Vineet Kumar, for the appellants.

Ii. B. Datar (ln C.A. No. 1883/69) and M. Veerappa, for thl' respcmdents.

The Judgment of the Court was delivered by

MATHEW, J.

The appellant was an excise contractor.

He secured the privilege of vending arrack in retail in certain taluks in the State of Karnataka for a period of 18 months beginning from. 28-12-1967 and ending on 30-6-1969.

He purchased arrack from the Government at a price of 17 paise per litre and the Government collected besides the sale price of arrack, excise duty, health cess and education cess.

The Government also collected sales tax on the sale price of arrack, on excise duty, on health cess and on education cess for the period from 28-12-1967 to 31-1-1968 and made similar demands for the month of February, 1968 also.

The appellant and other excise contractors filed writ petitions in the High Court of Karnatak:a cballenging the validity of the levy and collection of excise duty, education cess, health cess and sales tax.

The High Court accepted some of the conte:ntions of the appellant, granted him reliefs on that basis but rejected the other prayers.

The appellant has filed these appeals or the basis of certificates granted by the High Court against the order.

The contentions raised by counsel for the appellant before this Court were : that no excise duty can be levied on J licensee in respi::ct of the quantity of arrack purchased by him from Government depots, that the power to fix the rate of excise duty conferred under s. 22 of the Mvsore Excise Act of 1965 on the Government was bad for the

rca?on .that it w.as an abdication by the state lcgilaturc of its essential lcgislat1ve function and that no 8ales tax could be levied on the price for sale of arrack since s. 19 of the Mysore Sales Tax Act 1957 under whi1=h the tax was levied was beyond the legislative comptcncc of the state legislature.

Section 22 of the Mysore Excise Act, 1965 (hereinafter rdcrred to as 'the Act') provides for levy of excise duty at such rate or rates as the government may prescribe on excisable articles manufactured or produced in the State under any licence 'or permit granted under the Act.

Section 23 of the Act deals with the method of levying excise duties.

The first contention of the appellant was that sections I 6, 22 and 23 of the Act read with Mysore Excise (Distillery and Warehouse) Rules, 1967 and with Mysore Excise (Excise Duties) Rules, 1968. enables levy of excise duty only when arrack is issued from a distillery or warehouse or other place of storage established or licensed under the Act and since the government depot from which he purchased arrack. does not come under the above category, no excise duty can be levied.

The High Court found that though sections 22 and 23 o~ t~1e Act and Rule 2 of the Mysore Excise (Excise Duties) Rules, 1968, do not expressly state that excise duty levied at the stage of issue of liquor from the government depot should be collected from the issuer or from the person to whom it is issued, it is obvious that excise duty . cannot be collected from the State Government which issues liquor from its depots and that the only person from whom it can be collected is the licensee, to whom the State Government issues liquor from its depots.

The material portion of s. 16 of the Act provides that the Excise Commissioner may, with the previous sanction of the State Government, establish or license a warehouse wherein intoxicants may be deposited and kept without payment of duty and that without the sanction of the State Govcrnmc;;~ no i111oxicant shall be removed from any distillery, brewery, warehouse or other place of storage established or licensed under the Act unless the duty, if any imposed under the Act has been paid or a bond has been executed for tl, le payment thereof.

It is clear from the return filed before the High Court that thl' Government purchase arrack from the distillers and keeps it in the warehouse established or licensed under s. 16 and that any removal of arrack after the purchase of the same will attract theliability to pay excise duty shall be levied on the excisable article issued from a ware Excise Commissioner who is competent to establish or license a warehouse wherein intoxicants may be deposited and kept under clause ( e) ot s. 16 and therefore it is not a warehouse established or licensed b"· the State Government. -

We see no force in this contention. Section 23 provides that excise duty shall be levied on ihe excisable article issued from a warehouse also.

We sec no reason to think that a warehouse established 1.1r licensed under s. 16 ( e) is not warehouse within tbe meaning: of that exprll$Sion in s. 23,

!'he second contention raised by the appellant was that s. 22 of the Act provides for delegation of the power to fix the rates bf excise duty co the Government by making rules and since no guidance has been furnished to the government by the Act for fixing the rate there was abdication of essential legislative function by the legislature and therefor, e the section is bad.

'fhe High Court after referring to th..: preamble of the Act said that it was the policy of the Act both to raise revenue and to discourage con:iUmption of liquor by making the price -0f liauor s.uffic1e11tly high, and that that would serve as a guidance to fix the rates of excise duty, that the rates fixed will be such as would keep the balance between these somewhat conflicting objects so as to serve the purpose of each. The Court further said that if the rate of excise duty is too low, not 'only will the revenue fom excise duties suffer but also there will be increase in the consumption of liquor; but if the rate of excise duty on liquor is too high, it is likely to encourage the production and consumption of iJlicit liquor and consequently the control and regulation of liquor as well as the revenue from excise duty may be affected advers1ly. The Court therefore held that the need to arrive at such rates of: excise duty as will Sl"rve the twin objects of the policy underlying the Act operates as guidance for determination of the rates of e:xcise duty.

We are not certain whether the preamble of the Act gives any guidance tor fixing the rate of excise duty. But that does not mean that the legislature here has no control over the delegate. The le:gislative "nntrol over delegated legislation may take many forms.

In Corporation of Calcutta & A.nr. v. Liberty Cinema(I), the validity of s. 548(2) of the Calcutta Municipal Act, 1951, which empowered the Corporation to levy fees "at such rates as may from time to time be fixed by the Corporation" was challenged on the ground of

exasive delegation as it provided no guidance for the fixation,. of the amount. The majority upheld the provision relying on the decision in Banarsi Das v. State of Madhya Pradesh(2) holding that the fixation of rates of tax not being an essential legislative function, could be validly delegated to a non-legislative body. but observed that when it was Jeft to such a body, the legislature must provide guidance for such fixation.

The Court found the guidance in the monetary needs of the Corporation for carrying out the functions entrnstl'-d to it under the Act. .

In Municipal Board, Hapur v. Raghuvendra Kripal(3 ) the validity of the U; P. Municipalities Act, 1916, was involved. The Act had empowered the municipalities to fix the rate of tax and after having enurnetated the kinds of taxes to be levied, prescribed an elaborate

(ll [l965J 2, S.C.R. 477.

(2) [1959] S.C.R. 42'7. .

(3) [1966) I S.C.R. 950

procedure for such a levy and .also provided for the sanction of the

Govemmnt. Section 13 5 ( 3) of the Act raised a conclusive preswnption that the procedure prescribed had been gone througb. on a .certain notification being' issued by the Government in that egard. This provision, it was contended, was ultra vires because there was an abdication of essential legislative functions by the legislature with respect to the imposition of tax inamuch as the. State Government . was given the powr to condone the breaches of the Act and to set at naught the Act itself.

This, it was contended, was an indirect exempting or dispensing power.

Hidayatullah, J. speaking for the majority, said that regard being had to the democratic set up of the municipalities which need the proceeds of these taxes for their own administration, it is prop.:r to leave to these municipalities the power to impose and collect these taxes.

He further said that apart from the fact that the Board was representative body of the local population on whom the tax was levied, there were other safeguards by way of checks a.nd controls by Government which could veto the action of the Board in case it did not carry out the mandate of the legislature. ·

I.n Devi Dass Gopal Krishnan v. State of Pun; ab( 1) the question was whether s. 5 of the East Punjab General Sales Tax Act, 1948; which empowered the State Government to fix sales tax at such rates as it thought fit was bad. The Court struck down the section on the ground that the legislature did notlay down any policy or guidance to the executive in the matter of fixation of rates. Subba Rao,

C.J., speaking for the Court, pointed out that the needs of the State and the purposes cif the Act would not provide sufficient guidance for the fixation of rates of tax. He pointed out the danger inherent in the process of delegation :

"An overburdened Legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may Ii>t set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate [egislatio11. This self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation." ·

In Municipal Corporaiion of Delhi v. Birla Cotton Spinning and Weaving Mills( 2), the main question was about the constitutionality of delegation of taxing powers to municipal corporations. The Delhi Municipal Corpoation Act (66 of 1957) bys. 113(2) had \m}powered the CorporaM.on to levy certain optional taxes.

Under s. 150, power was given to the Corporation to define the maximum rate of tax to be levied, the classes of persons and the description of articles and property tp be taxed, the systems of assessment to be adopted

(I) [l967]3; S.C.R. 557.

(2) [1968] 3, S.C.R. 251.

and the exemptions, if any, to be granted. The. majority of the court held the cklcgation to ho valid. Wanchoo, C .J. observed tbat there were sutlicient guidance, checks and saf, guards in t11c Act which prevented excessive dckgation.

The learned Chief Justice observed that statements in certain cases to tho effect that th, power to fix rates cf taxes is 1101.· an essential legislative fUnctioh \Vere too broad and that •tl1c natur~ of th~ body to \vhich dclcgtion is n1atl.; is also :t factor to be taken into consideration in dctcrminin~ whether there is suftieicnt guidance in the matt.::r of dl.!Icgation·. .r\ccording to the learned Chief Jmticc, the fact that dclcation was made to an dected body responsible to the people including those who paid taxes

provid1:d, a grci1t check on the eleci.ed councillors imposing unrcason- :1blc rates cf tax.

He then said : "The guidance may take the form of providing maximum rates of tax up to which a local body may be givon the discretion to nlakc its choi:.:c-, or it n1, uy take the form of providing for consuLation with the people o( the local area and then fixing th~ rati:s after such consultation.

It may alsO. take the form of subjecting the rate to be fixed by the local body to the approval of Government which acts as a wntchdog on the actiqns of the local body in this matter on behalf cf the legislature.

There may be other ways in which guidance may be provided.'" In Sita Ram Bishambhar D, ayal v. State of U.P.( 1} s. 3-D(ll of the U. P. Sales Tax Act, 1948, had provided for levying taxes at such rates as may be prescribed by the State Government not exceeding the 171aximum prescribed therein.

Hegdc, J., in speaking fnr the. Court, observed : ·

'"However much one might deplore the "New Despotism' of the execmive, the very complexity of the modern society

arid Th:.! demand it makes on its Government have set in. motion forces which have made it absolutely necessary for the Lcgh:Iatures to entrust more and more po\v<=ts to the executive.

Text hook doctrines evolved in the 19th centurv have become out of date." - In this case, we think that s. 71 of the Act which provides for the rule-making power imposes the necessary check upon -the wide power given to the government to fix the rate.

Sub, secli"DD, { 4) of that section provides :

"Every rule made under this section shall be'.(;~:µ((. ijs soon as may be after it is made, before each Hi:w9e of _t!)e State Legislature while it is in sessii:ln for a totµ'Ipef/Odof thirty days which may be comprised in _one .seji6ii , o.r. in two or more successive sessions and if befcmi.the_,'\'Xpiry,.<~ •. the session in which it is so laid or the sessTon immodia~Y,: follo\ving, both Hous::s agree in nlaking any modification in. the rule (it?) shall thereafter have effect 9nly ih -such modified form or be of no cffcci;· ns. the_ ~:1<c may

(I) [19721 2, S.C.R. 141.

M. K. PAPIAH v. EXCISE CO, IMR. (Mathew, J.) 613

be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule." The appellant submitted that s. 71(4) does not provide a

guaratcc for legis'ativc control over d7legated legislation.

The

trgu1nnt \Vi.IS that the rules would come into forcz as soon as they arc framed and that the power of the legislature to annul the rules subsequcntl1y cannot be rcgard'd as sufficient contrc, l over delegated legislation.

Thal laying of rules b'forc the legislature is control over delegated Jcgisb:ion is implied in the speech of Lord Thankerton in the House of Lords in Minisrer of llealt!z v. The King(') where he said:

"'ln this case, as in similar cases that have .cOme before tho courts, Parliament has delegated its legislative function to u Ministor of the. Crown, but in this case Parliament has

retained no specific control over the exercise of the function by tho Minister, such as a condition that the order should be '.aid before Parliam2nt and might be annulled by a resolution of either House within a limited period." In filsiitute of Patent Agellts v. Joseph Lockwood(') Lord \Vatson said : 'The Legislature retained so far a check that it required that the regulations which they framed should be laid upon the wbk of both Houses; and of course these regulations could have been annulled by an unfavourable . resolution upon a nlo:ion made in either House.'' Jn Banard Schewartz's "An fntroduction to American Administrative Law• it is stated :

"In Britain, Parliamentary control over delegated legislation is exercised through the various forms of 'iaying' prescribed in enabling Acts.· Through them, the legislature is enab!cd at least in theory to exercise a continuing supervision ovzr administrz:tive rules and regulations.'' .As Dan Landis pointed out, the English techniques for laying the ruks before the Houses have several virtues. "For one thing, they bring the !ei>lativc into close and constant contact with the administrative .'T').

Th: legislature may also retain its control over its delegate by exercising its power of repeJl. This was the basis on which the Privy

Co1.111cil in Ct'!.'1:1 c~ Ci>. v. Kron,.?("') upf1ed ih..:- v;.1lidi:v of delegatin~ of t:1cp0\vr to fix rates to the Commissioner of Transport in th:It c: 1 s=.~. The qustion there \Vas \Vhthr the Queensland -Leizishtur,: h:d legishtive authority uhdcr the impugned Acts to invest the Cornn1i!'io~~~-fr Transport \vith pJWe~ to impose and levy

(I) [1931] A.C. 5'.!4.

(2) [1894] A.C. 347. ('3) see Landis, .. The Administrative Process ... 77 (1938~ . (4) [1967] l, A.C. 141 (P.C.). .

SUPR, E:t.lE COUllT REPORTS [197~] 3 s.c.11..

licence and permit fees. It was not dispute<l; fore the~ Lordships t fees imposed are to be regarded as constitutmg taxlltion. Accordingly, it was contended that the legislature had abdicated its exc.lusive power of levying taxation. The Privy Council held that Queensland Legislature was entitled to use any agent or machinery that it considered appropriate for carrying out the object and the purposes of the Acts and to use the Commissioner for Transpoit as its instrument to fix and recover the licence and permit fees, provided it preserved its own capacity intact and retained perfect control over him; that as it could at any time repeal the legislation and withdraw such authority and discretion as it bad vested in him, it had not assiblled, transferred or abrogated its sovereign power to levy taxes, nor had it renounced or abdicated its responsibilities in favour of a new1y created legislative authority and that, accordingly, the two Acts

were valid.· Lord Morris of Borth-y-Gest said :

'~What they (the legislature) created by the passing of the Tram:port Acts could not reasonably be described as a new legislative power or separate legislative body armed with general legislative authority (see R. v. Burah, (1878), 3 A. C. 889). Nor did the Queensland :µgislature 'create

and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence' (5ee

In re the Initiative 011d Refere11dum Act ( 1919) A.C. 945 at 945)." The point to be emphasized-and this is rather crucial-is the :.tatcment of their Lordships that the legislature preserved its capacity intact and retained perfect control over the Commissioner for Transport inasmuch as it could at any time repeal the legislation and withdraw the autlwrity and discretion it had vested in him, and, therefore, the legislature did UQt abdicate its functions. - We, therefore, think that the power to fix the rate of excise duty cornferred Qil the government by s. 22 of the Act is valid. The dilution Qf P, UI'liameIJitary watch-dogging of delegated legislation may be deplored but, m the compulsions and complexities of modern life, cannot be helped.

The last contention raised by the appellant was that s. 19 of the Karnataka Sales Tax Act, 1957 is invalid as it pur ports to levy sales tax upon the sale of arrack made by the Government to licensees. The appellant submitted that the definition of "dealer' in s. 2 of the Act excludes the Government of Mysore and that by virtue of the provisions in s. 5(3) of that Act, no tax could be :levied on the sale of arrack by government to the appellant. We sec no merit in this contention. Section 19 of the Act reads:

"19. State Government entitied to collect tax as registered dealcrs.-Notwithstanding anvthing contained in this Act the Government o:f Mysore shall, in respect of any sale of goods e:tfected by them, be entitled to co11ect by way of tax any amount which a registered dealer effecting such sale would have been entitled to collect by way of tax under this Act." ·

Thi3 section makes it clear that notwithstan<llng aI1}thina QOlltained in that Act, the Government shall in respect of. any Ille of goods effected by it be entitled to collect by way of taX aDJ amoat which a registered dealer effecting such sale would have been CDtided to collect by way of tax under the Act. The section is clear thlt the Government could collect the tax on the sale made by it as if it were

a registered dealer, not withstanding anything contained in s. 2 or s. 5. The section itseH creates a right in the State to r.:cover and an obligation on the purchaser from the State to pay the amount. ADY

imposition of liability or obligation in respect of. sale or purchase of goods will be covered by Entry 54 of List Il of the Seventh Schedule of the Constitution.

We do not think that s. 19 is ultra vires the powers of the legislature.

We therefore dismiss the appeals but make no order as to costs.

V.M.K.

Appeals dismissed.

M. K. P APIAH & SONS

THE EXCISE COMMISSIONER & ANR

K. K. MATHEW

V. R. KIUSHN.\ IYER

P. K. GOSWAMI, JJ

Mvsore Excise Act, 1965

Sections 16, 22 and 23

Mvsore xcise Act, 1965

Sales Tax Act

Schedule V

Karnataka

High Court at Karnataka

s. 22

s. 19

s. 16

Section 23

S. 16(e)

s. 23

s. 71

s. 22

[1967] 3 S.C.R. 557

Section 19

Sulcs Tax Act, 1957

s. 2

Seventh Schedule

Section 19

Mysore High Court

K. Srinivasan

Vineet Kumar

B. Datar

M. Veerappa

MATHEW

High Court of Karnatak

s. 22

s. 19

Mysore Sales Tax Act 1957

Section 22

Mysore Excise Act, 1965

Section 23

sections 22 and 23

s. 16

s. 16

s. 16

Section 23

s. 16

s. 23

s. 22

s. 548(2)

Calcutta Municipal Act, 1951

Municipalities Act, 1916

Section 13

Hidayatullah

I.n Devi Dass

s. 5

East Punjab General Sales Tax Act, 1948

Subba Rao

s. 150

Wanchoo

s. 3

Sales Tax Act, 1948

Hegdc

s. 71

s. 71(4)

Thankerton

Parliament

Jn Banard Schewartz

Britain

Dan Landis

Morris

s. 22

s. 19

Karnataka Sales Tax Act, 1957

s. 2

Government of Mysore

s. 5(3)

Section 19

s. 2

s. 5

Seventh Schedule

s. 19


~· Y: t• f. >.

SABHAJIT TEWARY

UNION OF INDIA & ORS.

February 21, 1975 . [A. N. RAY, C.J., K. K. MATHEW, Y. V. Cru\NDRAcHtJD, A.

ALAGIRISWAMI A. G. G UPTA, J/.]

Comriturio11 of India, Arts, 12 and 14--Counci/ of Sciemi{ic and lndust . ''/ 1 •1 • r1a[ Rcscarc!J, 1 aut ron y.

 Tho petitioner, a stenograp?er in the uncil of. Scbntific and Industrial Ran:b. contended that ccrta.Jn letters rctat1~2 t~ hL<i remuneration wen: dil criminatory, as far as he was concerned. and VIOlative of Art. 14.

Ojsm.issiog the petition, HElD : The resoondcnt Council is nol an athoritv ithin th~ me:llling of Art. 12 aod the petitioner was, therefore, not cnlltlcd to anvoke Art. 14 at.Umt it. [6188-C]

me Council doe'i not have a statutorv charac.tu like the Oil and Natur:t.I G:t.<& Commission or tho Life Insurance Corporation or the Industrial Fill:Ioce Corporation. It is a society incorporated in accordance with the provisions of

tho Societies Registcation Act. The tact that lbe Pnme linish:r t:s ill..: rn::Jident, or that the Government appoint! nominees to the governing boOy oc th.u

tbe Govemmeol may terminate the membership, will not establl:; b an;1111n6 more than tho fact that tho Government takes special care that tho promotioo, gutdan~ and coooeration of scientific and industrial research, tll~ institution and financing of spocific re-; earchcs, cstlbli!dlment or development and as.u, tance

to l>pecial in'ititu*ion'> or departments of tho ex..istiog institution..-. for scientific study o{ problems affecting particular indusl.ry in a trade, and th~ utilisation oi

the ruult of the re!learches conducted unJcr tho auspices of the Council towards the developnt of iod ustrie~ in the country, are Cf\rried out in a resporuible mMlner. [617EHJ

Prafa Toolr Corooration v. C. A. /manual & Ors. (19691 3 S.C.R. 773.

Jleav1 En;; inurtng Mazdoor Union v. Tl~ Stall! of BlluJr & Or!. [1969] 3 S.C.R. 995 and S. L. Agarwal v. Gnorc/ Ma11.agtr, Hindr~.rtan Steel Ltd. [1970] 3 S.C.R.

363. referred to. .

ORIGINAL I URISDlCTIO:--J : \Vrit Petition No. 43 of 1972.

Petition under Art. 32 of the Constitution of India.

B. R. G. K. Acher, for the pelitioncr.

F. S. Narimnn, Additional Solicitor General of India and Rameshwar Nath~ for respondents Nos. 2, 3 and 4.

The Judgment of the Court was delivered by

. _RAY, C.J.-In Writ Pd.ition No. 43 of 1972 the petitioner who_i., JUnmr stenographer in the Council of Scientific and lndustnal Research .... ked f d ' · t'r}· :J • . '.~...... or~ or cr ucclannp; two lt:tters to l~ discnmu • .l v t'nd vzh~Jve CJf Article 14. The two Jetter~ rclat~ to recon.unen<hj t>ns. 0. t le F'lllancc Sub Committee of the Council of Scientific an

ld~:mu Reseac}l with regard to remuneration of stenographers. same ort, \he pctJtJOners allegations are that ho should be granted tbe

tntransm :>er of advance increments as approved and granted to neW

. !

SABHAJIT TEWARY v. UNION ·(Ray, C.J.) 6 17

In order to entitle the petitioner to impeach the. ircular on the ground of infraction of Article 14 and 16, the ettttoner ha~ to

establih that the Council of Scientific and Industnal Research ts an authod1y within the meaning of Article 12 of the Constitution.

The Council is a society registered under the Societies Registration Act. Reliance was placed by counsel fo~ the t!tioner on t?ee features of the society. Under Rule 3, the Pnme Mtmster of Ind1a IS the ex-c:ffi.cio President of the Society. The Governing Body under Rule 30 consists of inter alia some persons appointed by the Government of India representing the administrative Ministry under which the Council of Scientific and Industritl Research is included, and the .Ministry of Finance and one or more member~~ appointed by the Government of India. The Government of India may terminate the membership of any member or at one and the same time of all members other than the ex-officio members of the Governing Body.

Rule 45 states that the Governing Body shall have the management of all the affairs and funds of the Society. Rule 46 states that the Governing Body shall have power, with the sanction of the Government of lrldia to frame, amend or repeal bye-laws not inconsistent with the rules for the administration and management of the affairs of the Society and in particular to provide for the terms and tenure . of appointments, employments, allowances, rules of discipline and other conditions of service of the officers and staff of the Society.

Reference was also made to the Government of India (Allocation of Business) Rules, 1961 and in particular to page 76 where it is stated that all matters relating to the Council of Scientific and Industrial Research are under the department of Science and Technology.

Extracting the features as aforesaid, it was contended that these would indicate that the Council of Scientific and Industrial Research was really an agency of the Government. This contention is unsound.

The Society does not have a statutory character like the Oil and Natural Gas Commission. or the Life Insurance Corporation or Industrial Finance Corporation. It is a society incorporated in accordance wit}} the provisions of the Societies Registration Act. The fac~ that the Prime Minister is the President or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will not establish anything more than the fact that th~~ Government takes special care t;1at the promotion. guidance

nd co-operation of scientific and industrial research. the institution and financing of soecific researches, establi<ihment or develooment and assistance to special institutions or departments of the aisting institutions for scientific studv of problems affectinl! narticuhr industrv in a trade, the utilisation of the result of the reserchcs conducted U!lder the ausoices of the Council towards the dcvelonmnt of industries in the country arc carried out in a rcspon<; ible manner.

H This Court ha<; hl"lrl in PrnOtJ Tnfll\· rorTJOI'tilitll? v. (i.IJ•i c. A.

Imamtal & Ors. f19691 3 S.C.R. 773. HPfl\.\' f:nni""Prill" Ma:::donr Union v. Thr! State of Bihar & Ors. f1 Q69l 3 S.C.R. 995 anti in

S. L Aarwrd v.

GenPm[ MmULf!l!r Hi11rlus'm1 Stt>e[ Ltd.

[1970J 3 S C.R. 363 that the Praga Tools Corporation. Heavy E.1ginccring 9- 470 Sup. CTf75

61.8

SUPREME COURT REPORTS [1975] 3 s.c.R.

Mazdoor Union and Hindustan Steel Ltd. are all companies incorporated under the Companies Act and the employees of these companies do not enjoy the protection available to Government servants as (:Ontemplated in Article 311. The companies were held in these

~:ase!S , to have . independent existence of the Government and by the Jaw relating to corporations. These could not be held to be deart ments of the Government.

For these rt, asons we are of opinion that the Council of Scien.tific and Industrial Research is not an authority within the meaning. of J'uticle 12 of the Constitution. The writ petition is dismissed.

Parties will pay and bear their own costs in this Writ Petition.

v.r.s.

Petition dismissed.

SABHAJIT TEWARY

UNION OF INDIA & ORS

February 21, 1975

A. N. RAY, C.J.

K. K. MATHEW

ALAGIRISWAMI

Art. 14

Art. 12

Art. 14

[1969] 3 S.C.R. 995

[1970] 3 S.C.R.

363

Art. 32

Constitution of India

B. R. G. K. Acher

F. S. Narimnn

Rameshwar Nath~

Article 14

Article 14 and 16

Article 12

Societies Registration Act

Government of India

Government of lrldia

Oil and Natural Gas Commission

Societies Registration Act

SUPREME COURT REPORTS [1975] 3 s.c.R.

Mazdoor Union

Hindustan Steel Ltd.

Companies Act

Article 311