1972 Supreme(Cal) 115

HIGH COURT OF CALCUTTA
P. B. Mukharji, B. C. Mitra
SRI DEBI MATA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
A. F. O. O 46  Of  1972
Decided On : MAY 03, 1972

The legislature has the power to delegate its legislative power to the executive, but such delegation must be within the limits prescribed by the Constitution. The delegation of legislative power must be for a specific purpose and must be subject to adequate safeguards to prevent the executive from exercising arbitrary or excessive power.

Headnote:

CONSTITUTION OF INDIA, 1950 - Article 226 - WRIT PETITION - CHALLENGING NOTIFICATIONS AND PROCLAMATIONS ISSUED BY STATE OF WEST BENGAL - TRANSFER OF TERRITORIES ACT, 1956 - Section 3, 43 and 44 - WEST BENGAL TRANSFERRED TERRITORIES (ASSIMILATION OF LAWS) ACT, 1958 - Section 3 - WEST BENGAL ESTATES ACQUISITION ACT, 1953 - Section 4, 52, 60 and 61 - BIHAR LAND REFORMS ACT, 1950 - Section 3 (b) - CHOTA NAGPUR TENANCY ACT, 1908 - BIHAR TENANCY ACT, 1885 - BENGAL TENANCY ACT, 1885 - Whether there has been delegation of legislative power by the legislature to the executive and as such is bad - Whether the provisions of the West Bengal Estates Acquisition Act, specially that of Section 61, is ultra vires the power of the said legislature - Whether there has been any effective repeal of the Bihar Land Reforms Act, 1950, so far as the transferred territories are concerned.

Fact of the Case:

The petitioners are challenging three Notifications and two Proclamations issued by the State of West Bengal or its authority. As common questions have been raised in all these Rules, they were heard and disposed of by the learned trial Judge by one judgment. In these appeals, the petitioners have followed the same procedure. The facts set out in Civil Rule No. 565 (W) of 1964 are taken as in the main petition. In this petition, the petitioner is Sri Sri Devi Mata who is the family deity of Panchkote Raj Estate. The petitioner-appellants have been holding certain land in the intermediary interest in Purulia which was previously within the district of Manbhum in the State of Bihar. On September 1, 1956, the Bihar and West Bengal (Transfer of Territories) Act, 1956 (hereinafter referred to as the Transfer of Territories Act) came into force. By virtue of Section 3 of this Act, major part of Purulia was transferred to West Bengal with effect from 1st November, 1956. Section 43, however, provided that notwithstanding such transfer otherwise enacted by competent legislature or other competent authority, the laws then applicable to the transferred territories would continue to remain operative in such territories. Section 44 of the said Act provided that the appropriate Government may then a year from the date of transfer adapt the laws which continue to remain in force with necessary modifications and that such laws so adapted would remain in force until altered, repealed or amended by a competent authority or a competent legislature. On the dale of transfer, the Bihar Land Reforms Act, 1950, which provided the vesting of certain categories of intermediary interests was in force in the territories so transferred to West Bengal. By Virtue of Section 43 of the Transfer of Territories Act, 1956, the provisions of the said Act continue to remain in force in the transferred territories of Purulia. It it not disputed that the provisions of the Bihar Land Reforms Act, 1950, are materially different from the provisions of the corresponding West Bengal Act, namely, the West Bengal Estates Acquisition Act, 1953.

Finding of the Court:

The Court held that there was no delegation of legislative power by the legislature to the executive and as such is bad. The Court also held that the provisions of the West Bengal Estates Acquisition Act, specially that of Section 61, is not ultra vires the power of the said legislature. The Court further held that there has been an effective repeal of the Bihar Land Reforms Act, 1950, so far as the transferred territories are concerned.

Issues: 1. Whether there has been delegation of legislative power by the legislature to the executive and as such is bad? 2. Whether the provisions of the West Bengal Estates Acquisition Act, specially that of Section 61, is ultra vires the power of the said legislature? 3. Whether there has been any effective repeal of the Bihar Land Reforms Act, 1950, so far as the transferred territories are concerned?

Ratio Decidendi: 1. The Court held that the legislature has applied its mind and has laid down the law in this case. Undoubtedly this Court will go into the problem whether a particular legislation is within the legislative competence of the legislature having regard to the arrangement in the Constitution of India. It is also open to this Court to consider whether a particular piece of legislation is a colourable exercise of such legislative power or not. It also means that this Court may even consider whether a particular statute or any particular provision thereof suffers from the vice of unauthorised or excessive delegation of legislative power. But subject to this consideration, the powers of the legislature being otherwise plenary, the legislature is not answerable to this Court on the issue raised by Mr. Dutt. 2. The Court held that what Section 60 docs is to decide when this chapter VIII will come into force. It comes into force by notification on such date and in such area of the transferred territories as the State Government may appoint. The West Bengal Estates Acquisition Act is a considered piece of legislation. When new territories have been added to West Bengal, !he West Bengal Legislature acquires full legislative competence subject to the Constitution of India. All that it says is that the State Government may by notification appoint the time when the West Bengal Estates Acquisition Act should come into force. Then what Section 61 of the West Bengal Estates Acquisition Act does is to provide for what is going to happen to other Acts which had been in operation before the transfer of territories. I do not, therefore, quite see the soundness of Mr. Dutt's argument that there has been a delegation of legislative power by notification and that it is excessive and unguided or that it means no application of legislative mind by the West Bengal Legislature. The legislative power and the legislative scheme contained in the West Bengal Estates Acquisition Act were carefully thought out. What Section 60 and Section 61 do is to facilitate the application of the West Bengal Estates Acquisition Act to the added territories. 3. The Court held that the West Bengal Legislature has the legal competence to pass the West Bengal Estates Acquisition Act, 1953, and had the full competence and the legislative power to pats Chapter VIII which was added by Section 2 of the West Bengal Estates Acquisition (Second Amendment) Act, 1963 (West Bengal Act XL of 1963 ). I hold that this was not a case of delegation and I say that it was, at best, a case of conditional legislation.

Final Decision: The appeals are dismissed.