Report No. 60

11.8. Section 18-Recommendation.-

The Act is silent as to the exercise of powers by delegates. We think it desirable to make it clear that where a power is delegated and the exercise of the power is dependent on the opinion of the authority on whom the power is conferred, the opinion to be formed (as a condition precedent) will be that of the delegate. We recommend the insertion of a new section for the above purpose on the following lines:-

Section 18A (New)

18A. Where, under any Central Act or Regulation made on or after the day of 1, or under any statutory instrument made thereunder:-

(a) the exercise of a power or discharge of a function by a person or authority is dependent upon the opinion, belief or state of mind of that person or authority in relation to any matter, and

(b) that power or function has been delegated in pursuance of such Act or Regulation or statutory instrument, then, save as is otherwise expressly provided by such Act or Regulation or statutory instrument, the power or function may be exercised or discharged by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter.

It may be noted that a similar point arose in Hazrat Syed Shah v. Commissioner of Wakfs, AIR 1962 SC 1086, where the Supreme Court approved the observation made by Lord Benning in Edward Mungoni v. A.G. of Northern Rhodesia, 1960 AC 336: (1960) 1 All ER 446 (HL). and stated that where powers and duties were inter-connected and it was not possible to separate one from the other in such a way that powers might be delegated while duties were retained and vice versa, the delegation of powers took with it the duties.

1. Date of Amendment Act to be entered.