MOHANLAL KOTHARI Vs. MAHBOOB

JUDGEMENT

(1.) THIS is miscellaneous first appeal under sec. 19 (2) of the Rajasthan Town Municipalities Act, 1951 (hereinafter to be called the Act) against the order of the learned District Judge, Jhunjhunu, dated the 30th of October, 1956, setting aside the election of Local Municipal Board held on the 4th of February, 1955, and directing the District Magistrate, Sikar to hold fresh election.

(2.) LOCAL town was treated as one constituency from which eight members were to be elected under the Act and the rules made thereunder. Fifteen persons filed their nomination papers including the six appellants and respondents Nos. 1, 2 and 3. The nomination paper of Mahboob respondent No. 1 was rejected by the Returning Officer on the 18th of June, 1955 on the ground that he was not literate, nor capable of reading and writing Hindi or any other language and thus was not qualified to stand for election under Rule 13 (I) of the Rajasthan Town Municipalities Election Rules hereinafter to be called the Rules ). The election was held on the 4th of February, 1955. The six appellants and respondents Nos. 2 and 3 were declared elected.

(3.) FACED with this difficulty it is argued on behalf of Mahboob respondent No. 1 that Rule 13 (1), which prescribes that every person who is on roll and is also capable of reading and writing Hindi or is otherwise literate shall be qualified to be a candidate is in valid in so far as it makes it necessary for a candidate possess the qualification of reading and writing Hindi or of being otherwise literate The rules were formed by the Government of Rajasthan in exercise of the power conferred by clauses (b) and (m) of sub clause 2 of sec. 205 of the Act, Sec. 205 (2) (b) (ii) so far as relevant runs as follows : - "sec. 205 (2) (b) (ii) particular, and without prejudice to the generality of the foregoing power, the Government may make rules or orders - (b) (i ). . . . . . . . . . . . . . . . . . . . . . . . (ii) for prescribing the qualifications of voters and of candidates. " It is therefore, obvious that in making Rule 13 (1) the Government was acting under sec. 205 (2) (b) (ii) and it was not acting inexcess of it. But it is urged that the Legislature should not have left the matter of prescribing the qualifications of voters and of candidates in the hands of the Government. It is contended that prescribing the qualifications of voters an of candidates was of vital importance which could not be delegated by the Legislature to some other authority. In my humble opinion, the power to make rules, bye-laws or regulations as matters specifically referred to in enactment can be transferred by the Legislature to the competent body who has to carry out the provisions of the Act. Giving of such powers does not mean effacement of the Legislature itself. In the present case under Chapter II of the Act, provisions have been made for the constitution of the Municipal Boards in the State of Rajasthan. Under sec. 8 it is provided that in every municipality there shall be a municipal board. Under sec. 9 provision has been made as to who shall be the members of the municipal boards. It has been laid down that every municipal board shall consist of such number of members wholly elected or partly elected and partly nominated, as may be fixed under sec. 10. Under sec. 10, Government has been given the power to determine the number of members and to fix proportion of the members who shall be nominated for each municipal board. Under sec. 12 general disqualifications for becoming a member are mentioned. Thus the Act lays down the policy for the election of a member to the municipal board. Having laid down the policy, the Legislature could leave to the Government how that policy was to be carried out. In the matter of the election of a municipal member, the Legislature has left to the Government to prescribe further qualifications for a candidate in accordance with the exigencies of the situation. I may refer to the observations of Mukerjee J. In Re Art. 143, Constitution of India, etc. (5 ). : - "the decisions referred to above clearly lay down that the legislature cannot part with its essential legislative function which consists in declaring its policy and making it a binding rule of conduct. A surrender of, this essential function would amount to abdication of legislative powers in the eye of law. The policy may be particularised in as few or as many words as the legislature thinks proper and it is enough if an intelligent guidance is given to the subordinate authority. The Court can interfere if no policy is discernible at all or the delegation is of such an indefinite character as to amount to abdication, but as the discretion vests with the legislature in determining whether there is necessity for delegation or not, the exercise of such discretion is not to be disturbed by the Court except in : clear fundamental princi ples and in respect to the powers of the legislature the constitutional position in India approximates more to the American than to the English pattern. "