1964 Supreme(Bom) 45

IN THE HIGH COURT OF BOMBAY
IN THE HIGH COURT OF BOMBAY
(AT NAGPUR)
Y.S.Tambe and N.L.Abhyankar, JJ.
Appellants: Ganesh Narayan and Ors.
Vs.
Respondent: Commissioner, Nagpur Division, Nagpurand Ors
Special Civil Appln. Nos. 458 of 1906 and 6 and 62 of 1963 Decided On: 10.08.1964
Counsels:
For Appellant/Petitioner/Plaintiff: B.R. Mandlekar and D.T. Mangalmurti, Advs.
For Respondents/Defendant: G.R. Mudholkar, Addl. Govt. Pleader

Headnote:

BOMBAY COMMISSIONERS OF DIVISIONS ACT, 1957 - SUB-SECTION (4) OF SECTION 3 - VALIDITY - EXCESSIVE DELEGATION OF LEGISLATIVE POWER - WHETHER ULTRA VIRES - BOMBAY COMMISSIONERS OF DIVISIONS ACT, 1957 - SECTION 3(4) - VALIDITY - WHETHER ULTRA VIRES - EXCESSIVE DELEGATION OF LEGISLATIVE POWER.

Fact of the Case:

The petitioners challenged the legality and validity of sub-section (4) of Section 3 of the Bombay Commissioners of Divisions Act, 1957, contending that it suffered from the vice of excessive delegation of legislative power or authority. The facts in all the three cases were similar. The petitioners were tenure holders of certain survey numbers situate in mouza Wadgaon, in Chanda Tahsil of Chanda District. The Commissioner of Nagpur Division issued a notification under Section 4 of the Land Acquisition Act, saying that certain lands in mouza Wadgaon including the portions of the aforesaid lands of the petitioners, were needed or were likely to be needed for a public purpose. That notification was published in the Government Gazette. That notification however was cancelled and another notification under Section 4 of the Land Acquisition Act was issued by the Commissioner Nagpur Division and it was published in the Government gazette. In the schedule attached to this notification, lands at mouza Wadgaon in the Chanda tahsil which were likely to be needed for a public purpose were shown. Subsequently, the Commissioner of Nagpur Division issued a further notification in exercise of the powers under Section 6 of the Land Acquisition Act and it was published in the Government gazette. In this notification it had been declared under Section 6 of the Land Acquisition Act, as amended, that the Commissioner was satisfied that the said land (land mentioned in the schedule attached to the notification issued under Section 4) was needed for the public purpose as stated in the notification. In the said notification, the Commissioner also in exercise of the powers under Section 17(1) of the said Act, directed that possession of the said lands may be taken on the expiration of fifteen days from the publication of the notice mentioned in Section 9(1) of the Act. It is these aforesaid two notifications i.e. notification under Section 4 published in the Government Gazette and the notification under Section 6 published in the Government gazette which the petitioners seek to get quashed by this petition under Arts. 226 and 227 of the Constitution of India.

Finding of the Court:

The Court held that sub-section (4) of Section 3 of the Bombay Commissioners of Divisions Act, 1957 was not ultra vires on the ground of excessive delegation of legislative power. The Court observed that the Legislature cannot delegate to any authority its essential legislative function. It can only delegate to an outside body subordinate or ancillary legislative functions for carrying out the purpose and the policy of the Act. Essential legislative function consists in determination of the legislative policy and its formulation as a binding rule of conduct. A provision in law authorising the executive authority to modify either an existing or future law for the purpose of giving effect to the provisions of the Act, is not had provided the power to modify an essential change in the Act sought to be modified or of its policy.

Issues: Whether sub-section (4) of Section 3 of the Bombay Commissioners of Divisions Act, 1957 suffered from the vice of excessive delegation of legislative power or authority.

Ratio Decidendi: The Court held that sub-section (4) of Section 3 of the Bombay Commissioners of Divisions Act, 1957 was not ultra vires on the ground of excessive delegation of legislative power. The Court observed that the Legislature cannot delegate to any authority its essential legislative function. It can only delegate to an outside body subordinate or ancillary legislative functions for carrying out the purpose and the policy of the Act. Essential legislative function consists in determination of the legislative policy and its formulation as a binding rule of conduct. A provision in law authorising the executive authority to modify either an existing or future law for the purpose of giving effect to the provisions of the Act, is not had provided the power to modify an essential change in the Act sought to be modified or of its policy.

Final Decision: The Court dismissed the petitions challenging the legality and validity of sub-section (4) of Section 3 of the Bombay Commissioners of Divisions Act, 1957.