Rajnarain Singh Vs. The Chairman,
Patna Administration Committee  INSC 73 (21 May 1954)
BOSE, VIVIAN MAHAJAN, MEHAR CHAND (CJ)
BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA
CITATION: 1954 AIR 569 1955 SCR 290
CITATOR INFO :
R 1957 SC 414 (13) F 1958 SC 682 (11) R 1958
SC 909 (7) R 1959 SC 512 (7) RF 1961 SC 4 (15) RF 1963 SC 771 (32) R 1965
SC1107 (22,81) MV 1966 SC 693 (28) RF 1967 SC1048 (20) R 1967 SC1480 (3,5,9,19)
RF 1968 SC1232 (14,53,81) RF 1973 SC1461 (227,450,566) R 1976 SC 714 (29,38,57)
RF 1979 SC1475 (18) RF 1980 SC 650 (5) R 1982 SC1126 (9) RF 1990 SC 560
Delegation of Legislative power-Limit and
extent of-Essential Legislative feature -Change of policy -Patna Administration
Act, 1915, (Bihar and Orissa Act I of 1915) as amended by Patna Administration
(Amendment) Act, 1928 (Bihar and Orissa Act IV of 1928) s. 3 (1)(f)-Whether
intra vires-Bihar and Orissa Municipal Act, 1922-Notification by
Governor-Beyond s. 3(1)(f) Ultra vires.
An executive authority can be authorised by a
statute 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 but it is clear that modification cannot include a change of
Essential legislative function consists in
the determination of the legislative policy and its formulation as a binding
rule of conduct. Modifications which are authorised are limited to local
adjustments or changes of minor character and do not mean or involve any change
of policy or change in the Act.
Section 3(1)(f) of the Patna Administration
Act of 19 15 (Bihar and Orissa Act I of 1915) as amended by Patna
Administration (Amendment) Act of 1928 (Bihar and Orissa Act IV of 1928) is
intra vires because any section or sections of the Bihar Municipal Act of 1922
can be picked and applied to Patna (whether with or without modification)
provided that does not affect any essential change in the Act or alter its policy
and the words "restriction" and " modification" are used in
the restricted sense.
The notification dated 23rd April, 1951, by
which the Governor of Bihar picked s. 104 out of the Bihar and Orissa Municipal
Act of 1922, modified it and extended it in its modified form to the Patna
Administration and Patna Village areas is ultra vires as it effects a radical
change in the policy of the Act and thus travels beyond the authority conferred
by s. 3(1)(f).
In re The Delhi Laws Act, 1912, etc. (
S.C.R. 747) applied.
CiviL APPFLLATE JURISDIOTION: Civil Appeal
No. 202 of 1953.
Appeal under article 132(1) of the
Constitution of India from the Judgment and Order dated the 22nd day of December,
1952, of the High Court of Judicature at Patna in Miscellaneous Judicial Case
No. 78 of 1952.
Basant Chandra Ghose (P. K. Chatterjee, with
him) for the appellant.
Mahabir Prasad, Advocate-General of Bihar,
(S. P. Varma, with him) for respondent No. 2.
1954. May 21. The Judgment of the Court was
delivered by Bose J.-The High Court of Patna granted the petitioner before it
leave to appeal under article 132(1) of the Constitution on the ground that a
substantial question of law relating to the interpretation of the Constitution
The appellant is the Secretary of the Rate
Payers' Association at Patna. He and the other members of his Association
reside in an area which was originally outside the municipal limits of Patna
and was not liable to municipal and cognate taxation. On 18th April, 1951, this
area was brought within municipal limits and was subjected.
to municipal taxation. This was accomplished
by a notification of that date. By reason of this the appellant and the others
whom he represents were called upon to pay taxes for the period 1 st April, 195
1, to 31st March, 1952.
The notifications were issued under sections
3(1)(f) and 5 of the Patna Administration Act of 1915 (Bihar and Orissa Act I
of 1915). The appellant claims that the notifications are delegated legislation
and so are bad and prays that sections 3(1)(f) and 5 of the Act which permitted
this delegation be condemned as ultra vires.
In order to appreciate the points raised it
will be necessary to go back to the year 1911 when the Province of Bihar and
Orissa was formed. It will also be necessary to bear in mind that we have to
deal with three separate sections in the area which is now called Patna. In
order to avoid confusion we will call them Patna City, Patna Administration and
Patna Village respectively. It must be understood that this is a purely
arbitrary nomenclature adopted by us for the purposes of this judgment and that
they are neither so called nor so recognised anywhere else.
Their boundaries have not been static but it
will be necessary to keep them notionally distinct.
292 When the new Province was formed in 1911
the Bengal Municipal Act of 1884 applied to the whole of it. At that time one
of the three portions of Patna with which we are concerned (namely, the portion
we have called Patna City) was under a Municipality (the Patna City
Municipality) created under the Bengal Act. This Municipality continued to
function in the Patna City area after the creation of the new Province. The
other two sections were not born as distinct entities till later and the areas
which they now cover were not under any municipal or cognate jurisdiction.
The new Province required a new capital and
Patna was chosen for the purpose. Quite naturally the City expanded and, following
the general pattern in India, a new area grew up (distinct from the old City)
which housed the headquarters of the new Government. Before long, it was
thought expedient to bring this area under municipal jurisdiction and give it a
municipality of its own rather than place it under the old city municipality.
Accordingly, the Legislature of the new State passed the Patna Administration
Act of 1915 (Bihar and Orissa Act I of 1915) to enable this to be done. This
Act came into force on,5th January, 1916.
The petitioner impugns sections 3(1)(f) and 5
of the Act and the notifications made under it on the ground that they permit
delegated legislation which has hurt him and wrongly rendered him liable to
Broadly speaking, the Act empowered the Local
Government to create a new municipality (later called the Patna Administration
Committee) for this new area which, in our arbitrary classification, we have
called Patna Administration. The Act called this new area "Patna and
defined its boundaries in the schedule to the Act. This area did not include
either the section which we have called Patna City or the one we have dubbed
Now the Legislature of this new State did not
draw up a new Municipal Act nor did it apply the existing Bengal Municipal Act
of 1884, which was at that time in force in the Province, to this new area
which the Act of 1915 called "Patna" and which we have called 293
Patna Administration. Instead, by section 3(1)(f) it empowered the Local
Government to "extend to Patna the provisions of any section of the said
Act" (the Bengal Municipal Act of 1884) " subject to such
restrictions and modifications as the Local Government may think fit."
This is a part of the impugned portion. Section 5, which is also impugned, runs"
The Local Government may at any time cancel or modify any order under section
3." Section 6(b) is also relevant, though it is not challenged.
It says, omitting unnecessary words, that"
The Local Government may ..................................
(b) include within Patna any local area in
the vicinity of the same and defined in the notification." We refer to
this here because the area we have called Patna Village *as later brought under
the jurisdiction of a new municipality called the Patna Administration
Committee by action taken under this section.
Armed with the powers which this Act
conferred, the Local Government created the new Municipality and called it the
Patna Administration Committee and, by a series of notifications with which we
are not concerned, extended certain sections of the Bengal Municipal Act of
'1884 to the area which we have called Patna Administration.
The result of all this was that up to 1922
there was in existence the Patna City Municipality with jurisdiction over the
area we have called patna City : the whole of the Bengal Municipal Act of 1884
applied there. Side by side was the new municipality called the Patna
Administration Committee holding way over the new area which we have called
patna Administration. The Bengal Municipal Act did not apply to this area of
its own force; only certain sections which the Local Government had picked out
under powers conferred by the Patna Administration Act Of 1915 were applied
The third area, which we have called Patna
Village, and which is the area which really concerns us, was free from
294 In 1922 the Provincial Legislature
enacted the Bihar and 'Orissa Municipal Act, 1922 (Bihar and Orissa Act VII of
1922). It repealed the whole of the Bengal Municipal Act-of 1884 and
substituted the new Act of 1922 for it. This only affected the Patna City area
and did not affect the Patna Administration area because the Bengal Act was
never applied to that area as such. The portions of it which were picked out to
have force there were applied by reason of the Patna Administration Act, 1915,
and that constituted, in truth and in fact, independent legislation. The result
was that the new Act of 1922 came into effect in the Patna City area and the
sections of the Bengal Act which were applied by reason of the Patna
Administration Act continued in force in the Patna Administration area. The
area which we have called Patna Village was still unaffected.
Understandably, the new Province preferred
its own legislation to that of Bengal. But despite the passing of the Bihar and
Orissa Municipal Act in 1922, the Local Government, acting under section 3(1)
(f) of the Patna Administration Act, 1915, could only extend sections of the
Bengal Act to the Patna Administration area and not sections of its own Act.
This was because of section 3(1) (a) whose provisions we need not examine. To
set this right the Bihar and Orissa Legislature passed an amending Act in 1928
(Bihar and Orissa Act IV of 1928) called the Patna Administration (Amendment)
Act of 1928. But that only provided for the future. So far as the present and
the past were concerned, section 4 of the amending Act provided,, Any section
of the Bengal Municipal Act, 1884, extended to Patna under clause (f) of
sub-section (1) of section 3 of the said Act " (that is, the Patna
Administration Act, 1915) " shall be deemed to continue to extend to Patna
until the extension of such section to Patna is expressly cancelled by
notification." Three years later, the Governor cancelled all previous
notifications extending sections of the Bengal Act of 1884, and the Bihar and
Orissa Act of 1922, to the Patna Administration area. In their places he picked
out certain sections of the Bihar and Orissa Act of 1922, modified; others, and
extended the lot so selected and 295 modified to the Patna Administration area.
This was done by Notification No. 4594 L. S. G. dated 25th April, 1931. It gave
a sort of fresh Municipal Code to this area. There were, however, significant
differences between this and the Act of 1922; for example, sections 4, 5, 6, 84
and 104 of the Act of 1922 were omitted altogether.
Nothing further happened, till 1951. In the
meanwhile, the Constitution of India came into force on 26th January, 1950.
We refer to this because before the
Constitution the Local Government was empowered to act under section 3(1) (f)
and section 6(b) of the Patna Administration Act, 1915. After the Constitution
these powers were transferred to the Governor of Bihar.
During this interval Patna was expanding and
the area which we have called Patna Village, originally just a village area,
began to be built upon It adjoined the Patna Administration area only a road
separated the two. It was therefore felt that this should also be brought under
municipal control. But instead of creating a third municipality the authorities
thought it best to place it under the jurisdiction of the Patna Administration
Committee. Here again, instead of legislating direct they fell back on the
Patna Administration Act, 1915, as amended in 1928. On 18th April, 1951, a
notification was published in the Gazette by order of the Governor of Bihar. It
is Notification No. MVP-45/50-3645 L.S.G. dated 11th April, 1951. It runs as
" In exercise of the powers conferred by
clause (b) of section 6 of the Patna Administration Act,, 1915, (Bihar and
Orissa Act I of 1915), the Governor of Bihar is pleased to "declare that
the area defined below is included within Patna........................
The area referred to is the third of the areas
we are considering, namely the one we have called Patna Village.
The effect of this was to bring Patna Village
under the municipal control of the 'Patna Administration Committee.
Five days later, the Governor of Bihar picked
section 104 out of the Bihar and Orissa Municipal Act of 296 1922, modified it
and extended it in its modified form to the Patna Administration and Patna
Village areas. This was by Notification No. M/Al-201-51-406 L.S.G. dated 23rd
April, 1951. The modified version -ran as follows:
" 104. Assessment of taxes-When the
Patna Administration Act, 1915, (B & 0 Act I of 1915), is first extended to
any place, the first tax on holdings, latrines or water may be levied from the
beginning of the quarter next to that in which the assessment of the tax has
been completed-in the area to which the Act is extended." The High Court,
purporting to apply In re The Delhi Laws Act, 1912(1) held that the impugned
sections and the notifications complained of are intra vires.
We are only concerned with the Patna Village
'area in this case. The appellant and those he represents all live in that area
and are the ones who impugn the validity of the taxes levied on them. They were
brought under Municipal control on 18th April, 1951. The Bengal Municipal Act of
1884 was no longer one of the existing laws in the State of Bihar on that date.
It was repealed in full in 1922 and was replaced by the Bihar, and Orissa
Municipal Act of 1922.
The selected sections of the Bengal Act of
1884 which the Local Government had picked out and applied to Patna Administration
were also repealed on 25th April, 1931, and in their place was substituted
another set of sections picked out by the Local Government from the Bihar and
Orissa Act of 1922 and modified in places. The facts accordingly narrow down to
In 1928 an executive authority (the Local
Government of Bihar and Orissa), subject to the legislative control of the
Bihar and Orissa Legislature, was empowered by that Legislature (because of Act
I of 1915 amended by Act IV of 1928) to do the following things:(1)to cancel or
modify any existing Municipal laws in the Patna Administration area (2)to
extend to this area all or any of the sections of the Bihar and Orissa
Municipal Act of 1922 (I)  S.C.R.
297 subject to such restrictions and
modifications as it considered fit;
(3) to add to the Patna Administration area
other areas not already under municipal control.
This, in short, is the effect of sections
3(1) (f), 5 and 6(b) of the Patna Administration Act of 1915 as amended in
1928. Armed with this authority, the Local Government (and later the Governor)
exercised all three powers.
On 25th April, 1931, the Local Government
repealed the existing law in the Patna Administration area, namely the sections
of the Bengal Act of 1884 which had been applied there from time to time. In
its place, it introduced a new set of laws culled from the Bihar and Orissa Act
of 1922 with such restrictions and modifications as it thought fit.
Then on 18th April, 1951, the Governor added
Patna Village to the Patna Administration area. And finally, on 23rd April, 195
1, he added a modified, version of section 104 of the Bihar and Orissa
Municipal Act of 1922 to the Municipal laws in these two combined areas.
The first question is whether the
notification of 26th April, 1931, can be attacked by the petitioner. In our
Opinion, it cannot. As we have already pointed out, this notification gave a
sort of fresh Municipal Code to the Patna Administration area. But it did not
affect the area with which we are concerned namely, the Patna Village area.
It was limited to Patna Administration. The
petitioner therefore cannot challenge it because it does not affect him and the
question whether it is open to challenge by other persons does not arise. We
are accordingly unable to give him the declaration which he seeks regarding
We turn next to the notification of 23rd
April, 1951. This does affect him because it subjects him to taxation. It was
made under section 3(1) (f), therefore, it will be necessary to examine (1)
whether the notification travels beyond the impugned portion of the Act and (2)
if not, whether section 3(1) (f) is itself ultra vires. But we cannot do this
until we examine the decision of this Court, in the Delhi Laws Act case(1).
(1)  S.C.R. 747, 38 298 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 if 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 any part 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, 299 (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 laws 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, so it will be necessary
to analyse what each Judge said.) The opinion of Kania C.J. will be found at
Put briefly his view was that only Parliament
can effect modifications in any " essential legislative function"
viz., "the determination of the legislative policy and its formulation as
a rule of conduct." For this reason he was prepared to uphold what he
called " conditional " or " subsidiary " or "
ancillary " legislation, but not the application by an executive authority
of Provincial Acts to which the Central Legislature had not applied its mind at
all (page 801); and for the same reason he excluded the application of all
The present Chief Justice (Mahajan J. as he
then was) took an 'even stricter view. He was prepared to authorise delegation
of ancillary or ministerial powers (pages 938 and 946) but except for that he
said" Parliament has no power to delegate its essential legislative
functions to others, whether State Legislatures or executive authorities,
except, of course, functions which really in their true nature are
ministerial." As against this, three of the Judges were more liberal. Das
J. was of the opinion that so long as Parliament did not abdicate or efface
itself and retained control in the sense of retaining the right to recall or
destroy or set right or modify anything its delegate did, it could confer on
the delegate all the rights of legislation which it itself possessed (page
1068). Patanjali Sastri J. (as he then was) took the same extreme view (pages
857, 858 and 870). Fazl Ali J. did not go as far though he upheld all the Acts
which were impugned in that case. At page 830 he said that300 the Legislature
must normally discharge its primary legislative function itself and not through
others," but that it may " utilise any outside agency to any extent
it finds necessary for doing things which it is unable to do itself or finds it
inconvenient to do. In other words, it can do everything which is ancillary to
and necessary' for the full and effective exercise of its power of
legislation." He dealt with the power to modify at page 846 and said"
The power of introducing necessary restrictions and modifications is incidental
to the power to apply or adapt the law......... The modifications are to be
made within the -framework of the Act and they cannot be such as to affect its
identity or structure or the essential purpose to be served by it. The power to
modify certainly involves a discretion to make suitable changes, but it would
be useless to give an authority the power to adapt a law without giving it the
power to make suitable changes." The other two Judges took an intermediate
view. Mukherjea J. said that essential legislative functions cannot be
delegated and at pages 982 to 984 he indicated what he meant:
,,The essential legislative function consists
in the determination or choosing of the legislative policy and of formally
enacting that policy into a binding rule of conduct," and at page 1000"
With the merits of the legislative policy, the Court of law has no concern. It
is enough if it is defined with sufficient precision and definiteness so as to
furnish sufficient guidance to the Executive Officer who has got to work it
out. If there is no vagueness or indefiniteness in the formulation of the
policy, I do not think that a Court of law has got any say in the matter."
Dealing with the word modification he said at, page 1006301 The word I
modification.......... does not, 'my opinion, mean or involve any change of
policy but is confined to alteration of such a character which keeps the policy
of the Act intact and introduces such changes as are appropriate to local
conditions of which the executive Government is made the Judge......... "
At pages 1008 and 1009 he explained this further and limited the modifications
to " local adjustments or changes of a minor character." Bose J.
contented himself at page 1121 by saying that the delegation cannot extend to
the " altering in essential particulars of laws which are already in force
in the area in question." But he added at page 1124" My answers are,
however, subject to this qualification.
The power to 'restrict and modify' does not
import the power to make essential changes. It is confined to alterations of a
minor character such as are necessary to make an Act intended for one area
applicable to another and to bring it into harmony with laws already in being'
in the State, or to delete portions which are meant solely for another area. To
alter the essential character of an Act or to change it in material particulars
is to legislate, and that, namely the power to legislate, all authorities are
agreed, cannot be delegated by a Legislature which is not unfettered." 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 out above: it cannot include
a change of policy.
Now coming back to the notification of 23rd
Its vire8 was challenged on many grounds but
it is enough for the purposes of this case to hold that the action of the
Governor in-subjecting the residents of the Patna Village area to municipal
taxation without observing the formalities imposed by sections 4, 5 and 6 of
the Bihar and Orissa Municipal Act of 1922, cuts 302 across one of it essential
features touching a matter of policy and so is bad.
The Act of 1922 applied to the whole of Bihar
and Orissa and one of its essential features is that no municipality competent
to tax shall be thrust upon a locality without giving its inhabitants a chance
of being heard and of being give n an opportunity to object. Sections 4, 5 and
6 afford a statutory guarantee to that effect. Therefore, the Local Government
is under a statutory duty imposed by the Act in mandatory terms to listen to
the objections and take them into consideration before reaching a decision. In
our opinion, this is a matter of policy, a policy imposed by the Legislature
and embodied in sections 4, 5 and 6 of the Act.
We are not able to brush this asideas
negligible and it cannot, in our opinion, be left to an executive authority to
tear up this guarantee in disregard of the Legislature's solemnly expressed
mandate. To do so would be to change the policy of the law and that, the
majority in the Delhi Laws Act case(1) say, cannot be done by a delegated
But the notification cannot be ultra vires if
it does not travel beyond the powers conferred by a law which is good.
It will therefore be necessary to examine the
vires of section 3(1)(f) in the light of the Delhi Laws Act decision.
Now what exactly does section 3(1)(f )
authorise? After its amendment it does two things: first, it empowers the
delegated authority to pick any section it chooses out of the Bihar and Orissa
Municipal Act of 1922 and extend it to "Patna"; and second, it
empowers' the Local Government (and later the Governor) to apply it with such
"restrictions and modifications" as it thinks fit.
In the Delhi Laws Act case(1), the following
provision was held to be good by a majority of four to three:
"The Provincial Government may......
extend with such restrictions and modifications as it thinks fit...... any
enactment which is in force in any part of British India at the date of such
Mukherjea and Bose JJ., who swung the
balance, held that not only could an entire enactment with (i)  S.C.R.
747303 modification be extended but also a part of one; and indeed that was the
actual decision in Burah's case(1) on which the majority founded: (see
Mukherjea J. at page 1000 and Bose J. at pages 1106 and 1121). But Mukherjea
and Bose JJ., both placed a very restricted meaning on the words
"restriction" and "modification" and, as they swung the
balance, their opinions must be accepted as the decision of the Court because
their opinions embody the greatest common measure of agreement among the seven
Now the only difference between that case and
this is that whereas in the former case the whole of an enactment, or a part of
it could be extended, here, any section can be picked out. But to pick out a
section is to apply a part of an Act, and to pick out a part is to effect a
modification, and as the previous decision holds that a part of an Act can be
extended, it follows that a section or sections can be picked out and applied,
as in Burah's case(1) where just that was done; also, for the same reason that
the whole or a part of an Act can be modified; it follows that a section can
also be modified. But even as the modification of the whole cannot be permitted
to effect any essential change in the Act or an alteration in its policy, so
also a modification of a part cannot be permitted to' do that either. If that
were not so, the law, as laid down in the previous decision, could be evaded by
picking out parts of an Act only, with or without modification, in such a way
as to effect an essential change in the Act as a whole. It follows that when a
section of an Act is selected for application, whether it is modified or not,
it must be done so as not to effect any change of policy, or any essential
change in the Act regarded as a whole. Subject to that limitation we hold that
section 3(1)(f) is intra vires, that is to say, we hold that any section or
sections of the Bihar and Orissa Municipal Act of 1922 can be picked out and
applied to "Patna" provided that does not effect any essential change
in the Act or alter its policy.
The notification of 23rd April, 1951 does, in
our opinion, effect a radical change in the policy of the Act.
(I) 5 I.A. 178.
304 There fore, it travels beyond the
authority which, in our judgment, section 3(1)(f) confers and consequently it
is ultra vires, It is not necessary to examine the vire8 of section 5 of the
Act of 1915 which was also impugned because no action taken under it has hurt
the appellant and so he cannot question its vires.
The result is that the appeal succeeds. We
hold(1) that section 3(1)(f) is intra vire8 provided always that the words
"restriction" and "modification" are used in the restricted
sense set out above; and (2) that the notification of 23rd April, 1951, is
The question about the vires of the notification
of 25th April, 1931, and of section 5 does not arise.
The respondents will pay the appellant's
costs here and in the High Court.