IMPORTANT POINTS
1. A delegated power to legislate by making rules for carrying out the purposes of the Act is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself.
2. The proviso inserted into sub-rule (1) of Rule 3 of the Himachal Pradesh Ceiling on Land Holdings Rules, 1973 by the notification dated 4.4.1986 (published in the Himachal Pradesh Government Gazette dated 26.4.86) and the circular order dated 21.8.90 issued by the Registrar, District Kangra at Dharamshala are declared invalid and struck down as ultra vires the powers of the H.P. Ceiling on Land Holdings Act, 1972.

Headnote:(i) Himachal Pradesh Ceiling on Land Holdings Rules, 1973-Proviso to Rule 3(1)-Constitutional validity of-Impugned proviso placing embargo on right to transfer land subservient to tea estate-Act exempting such land from purview of Act-Impugned proviso beyond rule making power-Proviso to Rule 3(1) struck down as ultra vires H.P. Ceiling on Land Holdings Act, 1972.
       Held : Tea estates are excluded from the provisions of the Act by Section 5. Tea estate is defined in the interpretation clause of the Act to mean an area under tea plantation and includes within the definition such other area necessary for purposes subservient to a tea planation as may be prescribed . Rule 3 defines what areas shall be treated as subservient to tea plantation. The amendment made vide notification dated 4.4.86 places an embargo on right to transfer such subservient land though exempted from the operation of the Act. Clearly the impugned proviso is beyond the rule making power of the State Government as conferred by the Act. It is well settled that the Legislature cannot delegate its essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up the details. (Para 8)
       From the provisions of the Act we cannot spell out any legislative intent delegating expressly, or by necessary implication, the power to enact any prohibition on transfer of land. By placing complete prohibition on transfer of land subservient to tea estates no purpose sought to be achieved by the Act is advanced and so also such prohibition cannot be sustained. Land forming part of tea estate including land subservient to tea plantation have been placed beyond the ken of the Act. Such land is not to be taken in account either for calculating area of surplus land or for calculating area of land which a person may retain as falling within ceiling limit. (Para 13)
       The proviso inserted into sub-rule (1) of Rule 3 of the Himachal Pradesh Ceiling on Land Holdings Rules, 1973 by the notification dated 4.4.1986 (published in the Himachal Pradesh Government Gazette dated 26.4.86) and the circular order dated 21.8.90 issued by the Registrar, District Kangra at Dharamshala are declared invalid and struck down as ultra vires the powers of the H.P. Ceiling on Land Holdings Act, 1972. (Para 15)
       (ii) Delegated legislation-Rule making powers-Purpose of delegation of powers-Power cannot be so exercised as to bring into existence substantive rights or obligations or disabilities contemplated by provisions of Act itself.
       It is very common for the legislature to provide for a general rule making power to carry out the purpose of the Act. When such a power is given, it may be permissible to find out the object of the enactment and then see if the rules framed satisfy the test of having been so framed as to fall within the scope of such general power confirmed. If the rule making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent act. A delegated power to legislate by making rules for carrying out the purposes of the Act is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself. (Paras 13 and 14)

JUDGMENT

R.C. Lahoti, J.-Leave granted.

2. To consolidate and amend the laws relating to ceiling on land holdings in the State of Himachal Pradesh, the Legislative Assembly of Himachal Pradesh enacted Himachal Pradesh Ceiling on Land Holdings Act, 1972 (hereinafter the Act, for short). Sub-section (1) of Section 26 of the Act provides that the State Government may, by notification, make rules for carrying out the purposes of this Act. Sub-sections (2) and (3) thereof provide for previous publication of the rules and the rule being laid on the floor of the State Legislature as soon as may be after it is made. In exercise of the power soconferred the State Government has framed the Himachal Pradesh Ceiling on Land Holdings Rules, 1973 (hereinafter the Rules , for short). Rule 3 thereof reads as under :-

3. Areas to be treated as subservient to tea plantation.-(1) The following areas shall be treated as subservient to tea plantation :-

(a) areas on which there is programme for expansion of tea plantation during next ten years which will be determined by the State Government;

(b) areas covered by forests and forest growth of which the fuel wood, timber is required for the manufacture of the tea and maintenance of tea estate;

(d) land on which tea factories, labour quarters, playgrounds and other ancillary buildings are situated.

Provided that no land, treated as subservient to tea plantation under this sub-rule and exempted from the operation of the Act under Section 51(g) thereof, shall be transferred by the landowner in any manner, without the permission of the State Government.

(2) The owner of the tea estate will submit return in Form C-1 to the Collector showing the areas he intends to include for the purpose of clause (a) of sub-rule (1) within one month from the date on which these rules will come into force. The Collector on receipt of this return shall make such inquiry as he deems fit and thereafter send his recommendations to the State Government for orders which will be final."

3. The proviso appended to sub-rule (1) and placed just below clause (d) of sub-rule (1) was not there in the text of the Rules as originally framed. It has been inserted by amendment through Notification No. 10-5/73-II Rev. B. dated 4.4.86. This amendment was published in Gazette Extraordinary dated 26.4.86.

4. On 21.8.90 the Registrar Kangra District at Dharamshala issued a general circular to all Tehsildars-cum-Sub-Registrars (of deeds) in Kangra District containing the following direction :-

"It has been brought to the notice of the Government that the land owners are selling land exempted from the provisions of the H.P. Ceiling on Land Holdings Act, 1972. Therefore you are directed not to register the sale deeds in respect of such lands, and take action in such cases under the provisions of the Land Ceiling Act, 1972 and intimate of the same to the Deputy Commissioner also so that proper guidance is given by him."

5. It is the constitutional validity of amendment made in the Rules by notification dated 4.4.86 (published on 26.4.1986) and the circular order dated 21.8.90 which has been put in issue by a writ petition filed by the appellants. The cause of action arose to the appellants because their effort at alienating a piece of land subservient to tea plantation was sought to be put into jeopardy.

6. Shri Anil Divan, the learned senior counsel for the appellants has raised two pleas : (1) that the Act is not applicable to land subservient to tea estates and therefore a provision made in the Rules framed in exercise of powers delegated by the Act but proposing to make provision as regards a subject excluded from within the purview of the Act is ultra vires the provisions of the Act; (ii) that the prohibition imposed by the amended rule suffers from the vice of arbitrariness and un

Click Here to Read the rest of this document

2000 Supreme(SC) 402

Cases Referred (4)