# RAJNARAIN SINGH v. THE CHAIRMAN, PATNA ADMINISTRATION COMMITTEE, PATNA, AND ANOTHER

- **Citation:** [1955] 1 S.C.R. 290
- **Court:** Supreme Court of India
- **Decided:** 1952-03-31
- **Case number:** CIVIL APPELLATE JumsDICTION : Civil Appeal No. 202 of 1953
- **Bench:** Mehr Chand Mahajan C.J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajnarain-singh-v-the-chairman-patna-administration-committee-patna-and-another-390
- **Pages:** 15

## Headnote

MuKHERJEA,
VIVIAN
_.
BosE BH-AGWATI and VENKATARAMA AYYAR JJ.]
Delegation of Legislative power-Limit and tfXtent of-Essen-
~
tial Legislative feature-Change of
policy-Patna
Administration
4'
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) (!)-Whether intra vires-Bihar and Orissa Muni·
cipal Act, 1922-Notification by
Governor-Beyond s. 3(/)(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 policy.
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 1915 (Bihar
and ·orissa Act I of 1915) as amended by Patna Administration
(Amendment)
Act of 1928 (J?ihar and Orissa Act !Vof 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
v.rithout modification)
provided that does not effect 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)(£).
~- '-
In re The Delhi Laws Act 1912, etc. ([1951] S. C.R. 747) applied.
CIVIL
APPELLATE
JumsDICTION : 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.
>
,
)
.S.C.R.
SUPREME COURT REPORTS
291
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 was involved.
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 1st April, 1951,
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 Pro-·
vince 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 Administrati

## Text

1954
May 21.
290
SUPREME COURT REPORTS
[1955]
RAJNARAIN SINGH
v.
THE CHAIRMAN, PATNA ADMINISTRATION
COMMITTEE, PATNA, AND ANOTHER.
[MEHR
CHAND
MAHAJAN C.J.,
MuKHERJEA,
VIVIAN
_.
BosE BH-AGWATI and VENKATARAMA AYYAR JJ.]
Delegation of Legislative power-Limit and tfXtent of-Essen-
~
tial Legislative feature-Change of
policy-Patna
Administration
4'
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) (!)-Whether intra vires-Bihar and Orissa Muni·
cipal Act, 1922-Notification by
Governor-Beyond s. 3(/)(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 policy.
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 1915 (Bihar
and ·orissa Act I of 1915) as amended by Patna Administration
(Amendment)
Act of 1928 (J?ihar and Orissa Act !Vof 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
v.rithout modification)
provided that does not effect 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)(£).
~- '-
In re The Delhi Laws Act 1912, etc. ([1951] S. C.R. 747) applied.
CIVIL
APPELLATE
JumsDICTION : 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.
>
,
)
.S.C.R.
SUPREME COURT REPORTS
291
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 was involved.
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 1st April, 1951,
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 Pro-·
vince 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 nationally distinct.
Rajnarain Singh
v.
The Chairman,
Patna
Administration
Committee, P.atna,
and Another.
Bose].
'1954
Rajnarain Singh
v.
-Thi Chairman,
Patna .
.Administration
·committee, Patna,
· and Another.
· Bo.reJ.
292
SUPREME COURT REPORTS
[1955]
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 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 municipal taxation.
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 Patna Village.
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
~
' '
S.C.R.
SUPREME COURT REPORTS
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 viciruty of the same and defined in the notification."
We refer to this here because the area we have called
Patna Village was 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 Pa.tna 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 sway
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 there. The third area, which we have
called Patna Village, and which is the area which really
concerns us, was free from municipal control.
1954
!Wfaarain Singh
.v.
· Tlzt Chairman,
Patna
Administration
Cornmittu, Patna,
and Anot/ztr.
.Bo«J·
1954
Rajnarain Singh
·V.
The Chairman,
Patna
Adminlsiration
, Committee Patna,
and Another.
Bose J.
294
SUPREME COURT REPORTS
[1955]
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
s.ection 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 plac~s he picked
out certain sections of the Bihar and Orissa Act of 1922,
modified others, and extended the lot so selected . and
•
•
•
S.C.R.
SUPREME COURT REPORTS
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 follows :
"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
considerirtg, 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
1954
Rajnarain Singh
v.
The Chairman,
Patna
Administration
Committee, Patna
and Another·
Bose].
.1954
Rajnarain Singh
·v.
.
The Chairman,
Patna
Administration
Committee, Palna,
and AnotMr.
Bose].
296
SUPREME COURT REPORTS
[1955]
1922, modified it and extended it in its modified form
to the Pat11a
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
011 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 this.
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 tl1e 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
(1) [1951) S.C.R. 747.
_ ...
•,
-
S.C.R.
SUPREME COURT REPORTS
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 law 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, 1951, 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 25th
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 that notification.
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 iri the Delhi Laws Act case(1).
(1) [1951) S.C.R. 747.
1954
Rajnarain Singh
'<·
The Chairman,
Patna
Administration
Commit[fe, Patna,,
and Another.
Bose].
1954
~
Rajnlzrain' Sin'gh
v.
Tht·Ghain1ran,
Palha
Adniinistraiion
Committet; Palha,
and -An'Olher.
Bose']
298
SUPREME COURT REPORTS
[1955]
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 sway 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 futm:
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 er without modificat\on :
This was held !e:> ~ 14itfa 11ires by a majority of four
to three.
[
(
y
'-· ·.
}
'
S.C.R.
SUPREME COURT REPORTS
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 memebers 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 pages 794797. · 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 future
legislation.
.
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 that20-86 s.a. India/59
1954
Rtefnarain Sinth
v.
Thi Chairman,
'
PaJna
A.dministratio11
Commitl(e, Patna,
•nd Another.
• Bose J.
19~4
Rajnarain Singh
. v.
The Chairman,
·Patna
.Administration
Com'mill1_e, Patna,
·and Arweheh.
Bose].
300
SUPREME COURT REPORTS
[1955]
"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 tq make suitable
d1anges, 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 precisii;m 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 1009--
..
·s.C.R.
SUPREME COURT REPORTS
301
"The word 'modification' ........... does not, in 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.
contended 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 unfett~red."
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 notificatibn of 23rd April,
1951.
Its
vire.s was challenged on many grounds but
it is· enough for the purposes of this case to .Rold 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
1954
Rajnarain Singh
V•
The Chairman,
Patna
Administration
Committee, Patna,
and Another •
Bose].
f954"
Rajnarain Sinzh
..,
Tiu Chairman,
PtUna
Administration
Committee 1 Patna,
· .and Another.
Bost J.
302
SUPREME COURT REPORTS
[1955]
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 . given 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 aside as 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(') say, cannot be done by a
delegated authority.
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) (£) 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
things fit.
In the Delhi Laws Act case('), 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 enaWnent which is in force in any part of
British
India at the date of such notification."
. Mukherjea and
Bose JJ., . who swung tl1e balance,
held that not only could an entire enactment with
(1). [1951] S.C.R. 747
. "
,
-
II
'·
S.C.R.
SUPREME COURT REPORTS
303
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 "m,adification"
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 Judges.
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 Aat 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, eflect a radical change in the policy of the Act.
(1) 5 I.A. 178.
1954
Rajnarain Sini:h
v.
The Chairman,
Patna
Administration
Committee, Patna,
and Another.
BoJe].
Rajnarain Singh
v.
The Chairman,
Patna
Administration
Committee, Pntna,
and Another.
Bose].
304
SUPREME COURT REPORTS
[1955)
Therefore, 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 vires 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 vires 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 ultra
vtres.
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.
'
Appeal allowed.