MADANLAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India. Petitioners Nos. 1 to 5 were elected members of the Makrana Municipal Board before the Rajasthan Municipalities Act (Act No. 38 of 1959) (hereinafter referred to as 'the Act') came into force. The municipal board that functioned at the time the new elections were held, became "func-tus officio on account of the term of that board having run out. The new board could not be constituted before the Rajasthan Municipalities Act came into force for the reason that two members who had to be nominated before it could function were not so nominated by the Government. After the coming into force of the Rajasthan Municipalities Act of 1959, the Government issued the Rajasthan Municipalities (Transitory Provisions) Second Order, 1959 (Order No. II of 1959), and Section 3 thereof provided as follows:

(2.) The learned counsel for the petitioners has referred to the decisions of the Supreme Court in In re Article 143, Constitution of India and Delhi Laws Act (1912) etc., (Special Reference No. 1 of 1951); AIR 1951 SC 332. Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 465, Rajnarain Singh v. Chairman, Patna Administration Committee, Patua, AIR 1954 SC 569 and Milap Chand v. Dwarka Das, AIR 1954 Raj 252. It was urged by the learned counsel that the principles laid down by the aforesaid authorities are that a Legislature is not competent to delegate its essential functions to a subordinate authority, or to the executive, or any other subordinate authority, and as in the instant case the Rajasthan Legislative Assembly has delegated such essential functions by virtue of Section 301 of the Act, the said provision of law is invalid. In the next place, it was contended that as Section 3(iv) of the Order was inconsistent with Section 9 of the Act, it is invalid to the extent of such inconsistency for the reason that the delegated legislation could not over-ride the provision of the main Act under the authority of which such legislation was made.

(3.) Section 301 runs as follows: