CHIMANLAL DIPCHAND Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THERE are two petitions made under Art. 226 of the Constitution challenging Sub-section (2) of Section 6, Bombay Tenancy and Agricultural Lands Act, 1948, as being 'ultra vires' of the Legislature and also challenging a notification issued by Government under that Sub-section. There is also a reference made to us by the Civil -Judge, junior Division, Kumta, who had a similar question to consider and who has taken the view that Sub-section (2) of Section 6 is 'ultra vires' and has made a reference under Section 113, Civil P. C. The learned judge has given a very able and carefully considered judgment and his judgment has been of considerable help to us.

(2.) SECTION 6, Tenancy Act provides for the fixation of a maximum rent and the maximum rent which a landlord is entitled to recover may be fixed irrespective of any agreement, usage, decree or order of the Court or of any law, and Sub-section. (1) provides that the maximum rent payable by a tenant for the lease of any land shall not, in the case of an irrigated land, exceed one-fourth and in the case of any other land exceed one-third of the crop of such land or its value as determined in the prescribed manner. Then comes Sub-section (2) which confers certain power upon the State Government and the power is to issue a notification to fix a lower rate of the maximum rent payable by the tenants of lands situated in any particular area or may fix such rate on any other suitable basis as it thinks fit. In the case of the two petitions before us under Article. 226, the notification challenged is dated 17-10-1952, and by that notification the rate of maximum rent payable by the tenants is fixed by Government in the case of lands specified in Schedule I on which assessment not exceeding Rs. 4 per acre is levied or is leviable according as the lands are fully assessed or are totally or partially exempt from payment of assessment, at a rate equal to five times the assessment, and in the case of lands on which assessment exceeding Rs. 4 per acre is levied or is leviable according as the lands are fully assessed or are totally or partially exempt from payment of assessment, at a rate equal to two and a half times the assessment or a rate equal to Rs. 20 per acre, whichever is more, and one-sixth of the crops of lands or its value as determined in the prescribed manner, as the maximum rent payable by tenants of lands situated In the area specified in Schedule II appended to the notification. The lands of both the petitioners are situated in Schedule I and therefore they are governed by the first part of the notification, and the petitioner in Special Civil Application no. 1480 of 1953 points out that the crop raised as far as 'kharif' land is concerned was valued at Rs. 288 per acre and as far as 'varkas' land is concerned it was Rs. 96 per acre, and it is further pointed out that according to the maximum to be fixed under Sub-section (1) of Section 6 he would be entitled to recover Rs. 72 from his tenant, but by reason of the notification challenged his rent is reduced from Rs. 72 to Rs. 20 fn the case of 'kharif land, and in the case of 'varkas' land whereas he would be entitled to recover Rs. 24 per acre his rent is reduced from Rs. 24 to Rs. 5; and the petitioner in Special Civil Application No. 1008 of 1953 points out that as far as he is concerned the effect of the notification challenged is that the one-fourth fixed under Sub-section (1) of Section 6 has been reduced to 1/34th of the value of the crop. As far as the reference is concerned, the notification challenged is dated December 8, 1952, and that notification fixed the maximum, rent at one-sixth of the value of the crops whether the lands are irrigated lands or not.

(3.) THE challenge to these notifications is on two grounds. The first ground is that Sub-section (2) of Section 6 is 'ultra vires' of the Legislature because it constitutes delegated legislation. The other ground of the challenge is that even assuming Sub-section (2) of Section 6 was 'intra vires' of the Legislature, the notifications issued and challenged are beyond the scope ahd ambit of Sub-section (2 ). We will deal with the first contention first, because if the petitioners are right and if Sub-section (2) is 'ultra vires', no question of considering the validity of the notifications will arise. The doctrine of delegated legislation has been known and canvassed by Constitution writers for a considerable period. In England it was not much canvassed because the British Parliament being sovereign no question of the 'ultra vires' nature of any legislation would ever arise. But it was particularly canvassed in America because the American Constitution is based on the principle of separation of powers, and the view taken there was that the Legislature being one organ of the State and that organ being separate from the executive and the judicature, the functions entrusted by the Constitution to the Legislature could not be delegated to any other functionary. This principle of delegated legislation was also expounded by the Privy Council in many cases when the question arose with regard to legislation enacted by Legislatures in the dominions. As far back as -- 'the Queen v. Burah, 5 Ind App 178 (PC) (A), the Privy Council, while emphasising the fact that Legislatures in India were sovereign within their own ambit, pointed out certain limitations upon the legislative power arising out of the doctrine of delegated legislation. At one time jt was the fashion to draw a distinction between delegated legislation and conditional legislation and it was suggested that while delegated legislation was prohibited, conditional legislation was permissible. It was said that if the Legislature passed a law and left it to an outside agency to determine the time at which the law should come into force or to determine the place to which the law should be applied, then it was conditional legislation and the legislation became absolute when the conditions were satisfied, and it was open to the Legislature to leave it to the outside agency to determine when the conditions should be satisfied and when the law should become absolute. But in our opinion the true principle of delegated legislation is not so much a distinction between delegated legislation and conditional legislation or subordinate or ancillary legislation as the principle that it is solely the function of the Legislature to legislate and it is not open to the Legislature to delegate the essential function of legislation. If the Constitution entrusts to the Legislature the duty, responsibility and even the privilege of legislating, then the Legislature cannot set up a parallel co-ordinate authority and confer upon that authority the power which is entrusted to the Legislature itself, nor is it competent to the Legislature to efface itself or abdicate itself and permit some other authority to take its place. Therefore, the limitation upon a Legislature, which is not sovereign like the British Parliament but which is the creature of the Constitution, is that it cannot legislate in a manner which would result in its entrusting essential legislative functions to some other authority. It has also been said that it is an essential legislative function for the Legislature to lay down broadly the policy of legislation, to give at least an indication of what its policy is, and it is open to the Legislature to leave to an outside agency the execution and the enforcement of that policy. The doctrine of delegated legislation has undergone certain changes due inevitably to the complexity of modern life, to the fact that the State is fast becoming a welfare State, to the necessity of innumerable details being looked into, and various inquiries and investigations being made before the policy determined upon by the Legislature can be effectively carried out. In a simpler age the doctrine of delegated legislation had a more powerful sway than it has in our own complicated and difficult times. Even in America, the home of this doctrine, the Supreme court has to a large extent minimised the importance of the doctrine and refused to enforce it in all its rigour. As a matter of fact in the whole history of the American Supreme Court there have been only two Federal laws which have been held invalid on the ground of delegated legislation, and as pointed out by John p. Prank in his recent book "cases on the American Constitution" :