Chimanlal Dipchand vs The State of Bombay

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1953 Supreme(Bom) 143

IN THE HIGH COURT OF BOMBAY
Chagla, C.J. and Dixit Y.V. , J.
Appellants: Chimanlal Dipchand
Vs.
Respondent: The State of Bombay
Special Civil Appln. Nos. 1008 and 1480 of 1953 and Reference No. 10 of 1953
Decided On: 30.09.1953
Counsels:
For Appellant/Petitioner/Plaintiff: M.R. Parpia, Adv. With Thakordas Madgavkar Co., B. N. Gokhale, V.M. Limaye, R.A. Jahagirdar and N.M. Shanbhag, Advs.
For Respondents/Defendant: M.P. Amin, Adv. General, M.M. Desai and V.S. Desai, Advs. For Govt. Pleader and G.N. Vaidya, Adv.

Headnote:
Bombay Tenancy and Agricultural Lands Act, 1948 - Section 6(2) - Validity - Delegated legislation - Notifications issued thereunder - Validity - Scope of Section 6(2) - Interpretation.
Fact of the Case:

Two petitions challenging the validity of Section 6(2) of the Bombay Tenancy and Agricultural Lands Act, 1948, and notifications issued by the Government under that sub-section. A reference was also made by the Civil Judge, Junior Division, Kumta, who had a similar question to consider and who had taken the view that Section 6(2) was ultra vires and had made a reference under Section 113, Civil Procedure Code.
Finding of the Court:

1. Section 6(2) of the Bombay Tenancy and Agricultural Lands Act, 1948, is not ultra vires the Legislature and is a valid piece of legislation. 2. The notifications issued by the Government under Section 6(2) of the Act are within the scope of the said sub-section and are valid.
Issues: 1. Whether Section 6(2) of the Bombay Tenancy and Agricultural Lands Act, 1948, is ultra vires the Legislature? 2. Whether the notifications issued by the Government under Section 6(2) of the Act are within the scope of the said sub-section and are valid?
Ratio Decidendi: 1. The doctrine of delegated legislation has undergone certain changes due inevitably to the complexity of modern life, to the fact that the State is fast becoming a welfare State, to the necessity of innumerable details being looked into, and various inquiries and investigations being made before the policy determined upon by the Legislature can be effectively carried out. 2. The Legislature cannot efface itself or abdicate its essential judicial functions or for a Legislature to set up a parallel co-ordinate authority and confer upon that authority the legislative power and function which has been conferred upon it under the Constitution. 3. The Legislature must retain in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law, and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it. 4. Provided the legislative policy is enunciated with sufficient clearness or a standard laid down the Courts cannot and should not interfere with the discretion that undoubtedly rests with the Legislature itself in determining the extent of delegation necessary in a particular case. 5. The power of delegation is a component part of the content of legislative power and once this power of delegation is conceded, there is no limit to it except what has been already drawn attention to by the learned Judge at p. 431.
Final Decision: 1. The two petitions challenging the validity of Section 6(2) of the Bombay Tenancy and Agricultural Lands Act, 1948, and notifications issued thereunder are dismissed with costs. 2. The reference made by the Civil Judge, Junior Division, Kumta, is answered as follows: (1) Section 6(2) is valid, and (2) the notification is within the scope of Section 6(2). Costs in the Reference, costs in the cause.

JUDGMENT - Chagla, C.J.

1. There are two petitions made under Art. 226 of the Constitution challenging Sub-section (2) of Section 6, Bombay Tenancy and Agricultural Lands Act, 1948, as being ultra vires of the Legislature and also challenging a notification issued by Government under that Sub-section. There is also a reference made to us by the Civil -Judge, junior Division, Kumta, who had a similar question to consider and who has taken the view that Sub-section (2) of Section 6 is ultra vires and has made a reference under Section 113, Civil P. C. The learned judge has given a very able and carefully considered judgment and his judgment has been of considerable help to us.

2. Section 6, Tenancy Act provides for the fixation of a maximum rent and the maximum rent which a landlord is entitled to recover may be fixed irrespective of any agreement, usage, decree or order of the Court or of any law, and Sub-section. (1) provides that the maximum rent payable by a tenant for the lease of any land shall not, in the case of an irrigated land, exceed one-fourth and in the case of any other land exceed one-third of the crop of such land or its value as determined in the prescribed manner. Then comes Sub-section (2) which confers certain power upon the State Government and the power is to issue a notification to fix a lower rate of the maximum rent payable by the tenants of lands situated in any particular area or may fix such rate on any other suitable basis as it thinks fit.

In the case of the two petitions before us under Article. 226, the notification challenged is dated 17-10-1952, and by that notification the rate of maximum rent payable by the tenants is fixed by Government in the case of lands specified in Schedule I on which assessment not exceeding Rs. 4 per acre is levied or is leviable according as the lands are fully assessed or are totally or partially exempt from payment of assessment, at a rate equal to five times the assessment, and in the case of lands on which assessment exceeding Rs. 4 per acre is levied or is leviable according as the lands are fully assessed or are totally or partially exempt from payment of assessment, at a rate equal to two and a half times the assessment or a rate equal to Rs. 20 per acre, whichever is more, and one-sixth of the crops of lands or its value as determined in the prescribed manner, as the maximum rent payable by tenants of lands situated In the area specified in Schedule II appended to the notification.

The lands of both the petitioners are situated in Schedule I and therefore they are governed by the first part of the notification, and the petitioner in Special Civil Application no. 1480 of 1953 points out that the crop raised as far as kharif land is concerned was valued at Rs. 288 per acre and as far as varkas land is concerned it was Rs. 96 per acre, and it is further pointed out that according to the maximum to be fixed under Sub-section (1) of Section 6 he would be entitled to recover Rs. 72 from his tenant, but by reason of the notification challenged his rent is reduced from Rs. 72 to Rs. 20 fn the case of kharif land, and in the case of varkas land whereas he would be entitled to recover Rs. 24 per acre his rent is reduced from Rs. 24 to Rs. 5; and the petitioner in Special Civil Application No. 1008 of 1953 points out that as far as he is concerned the effect of the notification challenged is that the one-fourth fixed under Sub-section (1) of Section 6 has been reduced to 1/34th of the value of the crop.

As far as the reference is concerned, the notification challenged is dated December 8, 1952, and that notification fixed the maximum, rent at one-sixth of the value of the crops whether the lands are irrigated lands or not.

3. The challenge to these notifications is on two grounds. The first ground is that Sub-section (2) of Section 6 is ultra vires of the Legislature because it constitutes delegated legislation. The other ground of the challenge is that even assuming Sub-sect

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