1. Challenge to a notification issued under Section 87 of the Punjab Reorganisation Act, 1966, extending the Punjab (Regulations of Fees of Unaided Educational Institutions) Act, 2016. (Para 3 , 5 , 6 )
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2022 Supreme(SC) 1476
SUPREME COURT OF INDIA
A.M. Khanwilkar, Abhay S. Oka, J.B. Pardiwala, JJ.
Independent Schools` Association Chandigarh (regd. ) & Ors. – Appellants
Versus
Union of India & Ors. – Respondents
Civil Appeal No(s). 3877 of 2022 (Arising Out of SLP(C) No(s). 12955 of 2021) with Civil Appeal No(s). 3878 of 2022(Arising Out of SLP(C) No(s). 18283 of 2021)
Decided On : 11-05-2022
Important Points
The power to extend enactments with 'restrictions or modifications' under Section 87 of the Punjab Reorganisation Act, 1966, is limited to peripheral or insubstantial changes that preserve the original act's essence. Substantive changes, such as introducing new disclosure requirements or altering penalty amounts, are ultra vires.
Subject
Administrative Law - Executive Powers and Delegated Legislation
Act Referred
CONSTITUTION OF INDIA: Art.226
Punjab Regulations of Fees of Unaided Educational Institutions Act: S.5, S.87
PUNJAB REORGANISATION ACT: S.87
Punjab Regulations of Fees of Unaided Educational Institutions Act: S.5, S.87
PUNJAB REORGANISATION ACT: S.87
Headnote
Notification - Challenge to Government Order/Notification under Punjab Reorganisation Act, 1966 - Section 87 - [Section 87 of Punjab Reorganisation Act, 1966] - The court discussed the interpretation of 'restrictions or modifications' under Section 87 and held that certain changes introduced by the impugned Government Order/Notification were ultra vires as they were not peripheral or insubstantial changes to the provisions of the Punjab (Regulations of Fees of Unaided Educational Institutions) Act, 2016. The court also emphasized the need for legislative policy to determine penalty amounts, which cannot be provided by executive order under Section 87.
Fact of the Case:
The appellants challenged a Notification issued under Section 87 of the Punjab Reorganisation Act, 1966, by way of writ petition(s) under Article 226 of the Constitution of India. The High Court dismissed the writ petition(s) opining that the appropriate authority was competent to issue the Government Order/Notification.
Finding of the Court:
The court held that certain changes introduced by the impugned Government Order/Notification were ultra vires as they were not peripheral or insubstantial changes to the provisions of the Punjab (Regulations of Fees of Unaided Educational Institutions) Act, 2016. The court also emphasized the need for legislative policy to determine penalty amounts, which cannot be provided by executive order under Section 87.
Issues: The issues revolved around the validity of the changes introduced by the impugned Government Order/Notification under Section 87 of the Punjab Reorganisation Act, 1966, and the competence of the appropriate authority to issue such Government Order/Notification.
Ratio Decidendi: The court interpreted the scope of 'restrictions or modifications' under Section 87 and held that certain changes introduced by the impugned Government Order/Notification were ultra vires as they were not peripheral or insubstantial changes to the provisions of the Punjab (Regulations of Fees of Unaided Educational Institutions) Act, 2016. The court also emphasized the need for legislative policy to determine penalty amounts, which cannot be provided by executive order under Section 87.
Final Decision: The appeals were partly allowed, and certain provisions of the impugned Government Order/Notification were struck down as unconstitutional and ultra vires. The court also expunged certain observations made against the writ petitioner in the impugned judgment.
Legal Category Hierarchy
Advocates appeared:
Mr. Avi Singh, Advocate, Mr. Manohar Pratap, Advocate, Mr. Karan Dhalla, Advocate, Mr. Ajit Kumar Ekka, Advocate, For the Appellant / Mr. K. M. Nataraj, ASG, Ms. Swarupama Chaturvedi, Advocate, Mr. Ritwiz Rishabh, Advocate, Mr. Harish Pandey, Advocate, Mr. Raghvendra S. Srivastva, Advocate, Mr. Arvind Kumar Sharma, Advocate, Mr. Jayant K. Sud, ASG, Ms. Aishwarya Bhati, ASG, Mr. S. K. Singhania, Advocate, Mr. Bhuvan Mishra, Advocate, Mr. Varun Chugh, Advocate, Ms. Swati Ghildiyal, Advocate, Mr. Kartik Jasra, Advocate, Mr. Randeep Sachdeva, Advocate, Ms. Ruchi Kohli, Advocate, Mr. Adit Khorana, Advocate, Ms. Deepa Dutta, Advocate, Ms. Shreya Jain, Advocate, Mr. S. Rustam Singh Chauhan, Advocate, Ms. Deepabali Dutta, Advocate, Ms. Preeti Rani, Advocate, Mr. Gurmeet Singh Makker, Advocate, Mr. Chandra Prakash, Advocate, Mr. Rajive Bhalla, Advocate, Mr. Sumeir Anuja, Advocate, Mr. Jai Surya Jain, Advocate, Mr. Yajur Bhalla, Advocate, Mr. Deepak Samota, Advocate, Mr. Ashish Vajpayee, Advocate, Mr. Shubham Bhalla, Advocate, For the Respondent.
Mr. Avi Singh, Advocate, Mr. Manohar Pratap, Advocate, Mr. Karan Dhalla, Advocate, Mr. Ajit Kumar Ekka, Advocate, For the Appellant / Mr. K. M. Nataraj, ASG, Ms. Swarupama Chaturvedi, Advocate, Mr. Ritwiz Rishabh, Advocate, Mr. Harish Pandey, Advocate, Mr. Raghvendra S. Srivastva, Advocate, Mr. Arvind Kumar Sharma, Advocate, Mr. Jayant K. Sud, ASG, Ms. Aishwarya Bhati, ASG, Mr. S. K. Singhania, Advocate, Mr. Bhuvan Mishra, Advocate, Mr. Varun Chugh, Advocate, Ms. Swati Ghildiyal, Advocate, Mr. Kartik Jasra, Advocate, Mr. Randeep Sachdeva, Advocate, Ms. Ruchi Kohli, Advocate, Mr. Adit Khorana, Advocate, Ms. Deepa Dutta, Advocate, Ms. Shreya Jain, Advocate, Mr. S. Rustam Singh Chauhan, Advocate, Ms. Deepabali Dutta, Advocate, Ms. Preeti Rani, Advocate, Mr. Gurmeet Singh Makker, Advocate, Mr. Chandra Prakash, Advocate, Mr. Rajive Bhalla, Advocate, Mr. Sumeir Anuja, Advocate, Mr. Jai Surya Jain, Advocate, Mr. Yajur Bhalla, Advocate, Mr. Deepak Samota, Advocate, Mr. Ashish Vajpayee, Advocate, Mr. Shubham Bhalla, Advocate, For the Respondent.
Table of Contents
2. Validity of executive notifications imposing financial disclosure requirements, prohibiting additional costs from parents, and enhancing penalty amounts under the extended Act. (Para 5 , 6 )
3. Executive power to modify enactments is limited to peripheral or insubstantial changes that preserve the inbuilt policy, essence, and substance of the original legislation. (Para 9 , 12 , 14 , 16 )
4. Modifications under Section 87 of the Punjab Reorganisation Act, 1966, must be peripheral or insubstantial; substantive changes to legislative policy are ultra vires. (Para 9 , 13 , 17 )
5. Appeals partly allowed; requirements for financial disclosure and enhanced penalties struck down as ultra vires, while the prohibition on charging additional costs upheld. (Para 13 , 15 , 17 , 21 )
6. What is the scope of the power to extend enactments with restrictions or modifications under Section 87 of the Punjab Reorganisation Act, 1966?
The power is limited to alterations that keep the inbuilt policy, essence, and substance of the enactment intact, introducing only peripheral or insubstantial changes necessary to adapt the law to local conditions. (Para 9 )
7. Can an executive notification mandate financial disclosures if the principal Act is silent on such requirements?
No. Requiring institutions to upload income and expenditure accounts when the principal Act makes no such provision is a substantive change, not a peripheral one, and is therefore ultra vires. (Para 12 , 13 )
8. Can the executive enhance penalty amounts prescribed in a principal Act through a notification?
No. The quantum of penalty or punishment is a matter of legislative policy and must be determined by the legislature; enhancing such amounts via executive order is a substantial change and is unconstitutional. (Para 16 , 17 )
9. When is a modification to an extended Act considered valid and consistent with legislative intent?
A modification is valid if it restates the inbuilt policy, essence, and substance of the principal Act and is appropriate and necessary for better administration of the institutions governed by the Act. (Para 14 )
ORDER
1. Leave granted.
2. These appeals take exception to the judgment and order dated 28.05.2021 passed by the High Court of Punjab & Haryana at Chandigarh in Civil Writ Petition Nos.7706/2020 (O&M) and 7761/2020(O&M) respectively.
3. The appellants had assailed the Notification dated 13.04.2018 issued by the appropriate authority in exercise of powers under Section 87 of Punjab Reorganisation Act, 1966, (for short, 'the 1966 Act'), by way of writ petition(s) under Article 226 of the Constitution of India.
4. The High Court has dismissed the said writ petition(s) opining that the appropriate authority was competent to issue such Government Order/Notification.
5. Before this Court, the limited challenge is to Clauses (a) and (b) of the proviso, which have been inserted in terms of the impugned Order/Notification by way of paragraph 6 thereof. Paragraph 6 of the impugned Order/Notification reads thus:
"6. In section 5, after this proviso shall be inserted, namely:-
"Provided further that every Unaided Educational Institution shall-
(a) upload income, expenditure account and balance sheet on its website;
(b) not charge any kind of cost from the parents;
(c) disclose complete free structure at the beginning of the academic year in the Booklet issued, alongwith the admission form, by the schools and also be posted in its website;
(d) not raise the fee any time during the academic session." (emphasis supplied)
6. In addition, the appellants have questioned the validity of paragraph 8 of the impugned Order/Notification, which reads thus:
"8. In section 14:-
(a) in sub-section(1) for the words, "thirty thousand rupees", "rupees fifty thousand" and "rupees one lac", the words "sixty thousand rupees", "one lakh rupees" and "two lakh rupees" shall respectively be substituted;
(b) in sub-section(2) for the words, "sixty thousand rupees", "rupees one lac", the words "one lakh twenty thousand rupees", "two lakh rupees" and "four lakh rupees" shall respectively be substituted."
7. We have heard learned counsel for the parties.
8. The entire issue needs to be answered, keeping in mind the exposition of this Court in 'Lachmi Narain vs. Union of India' reported in 1976 (2) SCC 953.
9. The three-Judge Bench of this Court has had an occasion to deal with the provision similar to Section 87 of the 1966 Act. The expression 'restrictions or modifications' occurring in Section 87 [1] has been interpreted by this Court in following words:
"61........ Such a wide construction must be eschewed lest the very validity of the section becomes vulnerable on account of the vice of excessive delegation. Moreover, such a construction would be repugnant to the context and the content of the section, read as a whole, and the statutory limits and conditions attaching to the exercise of the power. We must, therefore, confine the scope of the words "restrictions and modifications" to alterations of such a character which keep the inbuilt policy, essence and substance of the enactment sought to be extended, intact, and introduce only such peripheral or insubstantial changes which are appropriate and necessary to adapt and adjust it to the local conditions of the Union Territory." (emphasis supplied)
[1] Section 87 in the Punjab Reorganisation Act, 1966:
87. Power to extend enactments to Chandigarh. The Central Government may, by notification in the Official Gazette, extend with such restrictions or modifications as it thinks fit, to the Union territory of Chandigarh any enactment which is in force in a State at the date of the notification.
10. The challenge in the present appeals is required to be decided on the basis of the principles stated in this judgment.
11. The question is: whether clause (a) of the third proviso inserted in terms of paragraph 6 of the impugned Government Order/Notification dated 13.04.2018 can be regarded as peripheral or insubstantial change to the provisions of the Punjab (Regulations of Fees of Unaided Educational Institutions) Act, 2016 (for short, 'the 201
