GRAM PANCHAYAT GORAKHPUR Vs. KHUSHALI DINDAYAL SAHU

JUDGEMENT

(1.) THIS matter has been referred to this Full Bench to interpret the phrase "subject to rules" in Section 244 of the M. P. Land Revenue Code. 1959. (hereinafter called the Land Revenue Code ). The Division Bench which referred this matter to us saw an apparent conflict between two Division Bench decisions of this Court in Ithoba v. Collector of Chhindwara, Misc. Petn. No. 277 of 1962, decided on 26-10-1962 = 1964 MPLJ (SN) 18 and Bhagwat Prasad v. Government of M. P. , 1966 MPLJ 557.

(2.) THE question before us is :--Whether the phrase "subject to rules made in this behalf" in Section 244 of the M. P. Land Revenue Code. 1959, connotes that until the contemplated rules are framed, the Gram Panchayat or the Tahsildar cannot exercise the power conferred on them for disposal of abadi sites.

(3.) THE words "subject to rules made in this behalf" or similar words are commonly employed in enactments, where the legislature contemplates framing of rules in exercise of delegated powers. We are of the opinion that that expression has to be interpreted according to the context in which it is employed. In each case the scheme and the provisions of the Act have to be examined. Where power is conferred and a machinery for its exercise already exists, it can be said that the expression "subject to rules made in this behalf" has merely an overriding effect so that if any such rules are made, the exercise of the power shall be subject to such rules. But where a special Power is conferred and there is nothing to regulate its exercise then that expression connotes that the power can be exercised only when the rules are framed and in accordance with them. To put it differently, in the former case, the rules will be so to say supplementary to the section: In the latter case, they will be complementary to the section. In the former case, the law is complete, even without the rules so that the rules, if any framed would have the overriding effect and in that case, the Power will be exercised only in accordance with them. But, in the latter case, the law is incomplete, and was deliberately left incomplete by the legislature to be completed by delegated legislation under the rule-making power. It can be said that in the former case, the phrase will be read as "subject to rules if any made in this behalf, while in the latter case. it would be read as "subject to rules to be made in this behalf". The phrase "subject to" signifies both these meanings that is. (1) liable or exposed to: likely to have; and (2) dependent or conditional on. Each of them is appropriate in its own context. Which of them will fit in, will depend upon the particular context. In Anand Nivas (P.) Ltd. v. Anandji. AIR 1965 SC 414 their Lord ships have laid down thus:---"having regard to the plurality of its meaning, the sense in which the expression is used in different sections, and even clauses, must be ascertained from the context of the scheme of the Act, the language of the provision and the object intended to be served thereby. " the decision in 1966 MPLJ 557 (Supra) also took the view which we take. In that decision, it is not held that the expression "subject to rules framed under this Act" meant as a universal rule that the rules, if framed, would channelise that power to be exercised in accordance with them, but in no case can that expression mean to connote that the power could not be exercised unless and until rules are framed. That case was decided in view of its Particular context and it was held:-"in our opinion. In the context of the Act, the intention was not to take away the right of the State Government to divide the municipality into wards until the rules were framed but to channelise the power in accordance with the rules if and when the rules were framed". The words "in the context of the Act" are significant. That case is an illustration where the expression "subject to rules" must be construed so as to connote an overriding effect.