HEMRAJ UDYOG Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) A Division Bench expressed an opinion that the following question should be finally settled by a larger Bench of this Court and therefore Honble Chief Justice constituted this larger Bench for the decision of the question. The question referred to the larger Bench reads as under:

(2.) We have given our due consideration to the arguments advanced before us and have gone through the case of M/s Kumar Swastik Enterprises (supra) as well as reference order wherein a contrary view has been taken as aforesaid. We are of the opinion that Division Bench in the case of M/s Kumar Swastik Enterprises (supra) has taken a too narrow view of the phrase rule as used in clause (XI) of rule 55 of the Rules Under sub-sec. (68) of Sec. 32 of the Rajasthan General Clauses Act, 1955 (Raj. Act No. 8 of 1955) (for short the General Clauses Act) rule has been defined and as per that sub-sec. (68) of Sec. 32, rule means a rule made in exercise of a power conferred by any enactment and shall include a non- statutory or other independent rule having for the time being force of law. Law has been defined in sub-sec. (41) of Sec. 32, which means any Law, Act, Ordinance, Regulation, Rule, Notification, Order, Bye-law, Scheme or other instrument having for the time being the force of law. The Rules having been made under the powers vested under Sec. 46 of the Raj-asthan High Court Ordinance, 1949 (Ordinance No. XV of 1949) have the force of law. Though by virtue of Sec. 4 of the General Clauses Act, the General Clauses Act is applicable to all Rajasthan laws in force in the pre-reorganisa-tion State of Rajasthan, made after the commencement of that Act including the Rules, but a look at the provisions of Genera! Clauses Act, 1897 (Act No. X of 1897) (for short, the Central Act), moreso its Sec. 3 (51) will show that the definition of rule shall mean a rule made in exercies of a power conferred by any enactment, and shall include a regulation made as a rule under any enactment. The Supreme Court in the case of (3) General Officer Commanding in Chief vs. Dr. Subhash Chandra Yadav, said that the r. framed under the provisions of statute form part of the statute. But before a rule can have the effect of a statutory provision two conditions must be fulfilled, namely (i) it must conform to the provisions of the statute under which it is framed, and (ii) it must also come within the scope and purview of the rule-making power of the authority framing the rule. Learned counsel for the RSEB by referring to Sec. 79 (c) of the Electricity Supply Act, 1948 under which the Rajasthan State Electricity Board Ministerial Staff Regulation, 1962, as amended vide order dated December 5, 1988, were framed, contended that under the aforesaid Sec. Regulations have also to be framed for day to day administration of the Board and therefore contended that the Phrase rule in clause (XI) of rule 55 of the Rules cannot be given such an extended meaning so as to include the regulation framed under Sec 79 of the Electricity Supply Act, 1948 and it should only be given restricted meaning limited to the rules framed under any Act. We are of the opinion that the intention of the rule making authority in inserting clause XI in rule 55 of the Rules vide notification dated April 27, 1989 was to confer jurisdiction on a Division Bench to hear writ petitions under Articles 226 and 227 of the Constitution of India involving the challenge to the vires of the provisions of any Act or Rules, Regulations, Notifications, etc. having the force of law. We are in agreement with the view taken by the Division Bench in the reference order that the term rule in clause (XI) of rule 55 of the rules should be given a wider interpretation so as to include all types of statutory instruments, which may be described as regulations, bye-laws or Ordinances having the force of law. The use of words or rules made thereunder in clause (XI) of rule 55 of the Rules, makes it clear that the intention was to give a wider interpretation to the termrule. Any other interpretation, in our opinion, will lead to absurdity because even the word Ordinance has not been used in clause (XI) of rule 55 of the Rules and there can be no doubt that the Ordinance is an Act and any challenge to the vires of the Ordinance will only be taken up by a Division Bench.

(3.) Consequently, we answer the point referred to us by the Division Bench as under:-