1

954

May 21.

290 SUPREME COURT REPORTS [1955]

RAJNARAIN SINGH

v.

THE CHAIRMAN, PATNA ADMINISTRATION

COMMITTEE, PATNA, AND ANOTHER.

[MEHR CHAND MAHAJAN C.J., MuKHERJEA, VIVIAN _.

BosE BH-AGWATI and VENKATARAMA AYYAR JJ.]

Delegation of Legislative power-Limit and tfXtent of-Essen-~

tial Legislative feature-Change of policy-Patna Administration 4'

Act, 1915, (Bihar and Orissa Act I of 1915) as amended by Patna

Administration (Amendment) Act, 1928 (Bihar and Orissa Act IV

of 1928), s. 3(1) (!)-Whether intra vires-Bihar and Orissa Muni·

cipal Act, 1922-Notification by Governor-Beyond s. 3(/)(f)-

Ultra vires.

An executive authority can be authorised by a statute to

modify either existing or future laws but not in any essential

feature. Exactly

what constitutes an essential feature cannot be

enunciated in general terms but

it is clear that modification cannot

include a change of policy. Essential legislative function consists

in the determination of the legislative policy and its formulation

as a binding rule of conduct. Modifications which are authorised

are limited to local adjustments or changes of minor character and

do not mean or involve any change of policy or change

in the Act.

Section

3(1)(f) of the

Patna Administration Act of 1915 (Bihar

and ·orissa Act I of 1915) as amended by Patna Administration

(Amendment) Act of

1928

(J?ihar and Orissa Act !Vof 1928) is ¥

intra vires because any section or sections of the Bihar Municipal

Act of

1922 can be picked and applied to

Patna (whether with or

v.rithout modification) provided that does not effect any essential

change in the

Act or alter its policy and the words

"restriction" and

~·modification" are used in the restricted sense.

The notification dated 23rd April, 1951 by which the ~-

Governor of Bihar picked s. 104 out of the Bihar and Orissa

Municipal Act of 1922, modified it and extended it in its modified

form

to the

Patna Administration and Patna Village areas is ultra

vires as it effects a radical change in the policy of the Act and thus

travels beyond the authority conferred by

s. 3(1)(£).

~-'-

In re The Delhi Laws Act 1912, etc. ([1951] S. C.R. 747) applied.

CIVIL APPELLATE JumsDICTION : Civil Appeal No.

202 of 1953.

Appeal under article 132(1) of the Constitution

of India from the

Judgment and

Order dated the 22nd

day of December,

1952, of the High Court of

Judica­

ture at Patna in Miscellaneous Judicial Case No. 78

of 1952.

> ,

)

.S.C.R. SUPREME COURT REPORTS 291

Basant Chandra Ghose (P. K. Chatterjee, with him)

for the appellant.

Mahabir Prasad, Advocate-General, of Bihar, (S. P.

Varma, with him) for respondent No. 2.

1954. May 21. The Judgment of the Court was

delivered by

BosE J .-The High Court of Patna granted the

petitioner before it leave

to appeal under article 132(1)

of the Constitution on the ground that a substantial

question

of law relating to the interpretation of the

·Constitution was involved.

The appellant is the Secretary of the Rate Payers'

Association at Patna. He and the other members of

his Association reside in an area which

was originally

outside the municipal limits

of

Patna and was not liable

to municipal and cognate taxation. On 18th April, 1951,

this area was brought within municipal limits and was

subjected to municipal taxation. This was accom­

plished by a notification of that date. By reason of this

the appellant and the others whom he represents were

called upon to pay taxes for the period

1st April, 1951,

to 31st March, 1952. The notifications were issued

under sections

3(1)(f) and 5 of the

Patna Administra­

tion Act of 1915 (Bihar and Orissa Act I of 1915). The

appellant claims that the notifications are delegated

legislation and

so are bad and prays that sections

3(1)(f) and 5 of the Act which permitted this

delega­

tion be condemned as ultra vires.

In order to appreciate the points raised it will be

necessary to go back to the year 1911 when the Pro-·

vince of Bihar and Orissa was formed. It will also be

necessary to bear in mind that we have to deal with

three separate sections in the area which

is now called Patna. In order to avoid confusion we will call them

. Patna City, Patna Administration and Patna Village

respectively. It must

be understood that this is a

purely arbitrary nomenclature adopted by

us for the

purposes of this judgment and that they are neither

so

called nor so recognised anywhere else. Their

bound­

aries have not been static but it will be necessary to

keep them nationally distinct.

Rajnarain

Singh

v.

The Chairman,

Patna

Administration

Committee, P.atna,

and Another.

Bose].

'1954

Rajnarain Singh

v.

-Thi Chairman,

Patna .

.Administration

·committee, Patna,

· and Another.

· Bo.reJ.

292 SUPREME COURT REPORTS [1955]

When the new Province was formed in 1911 the

Bengal Municipal Act of

1884 applied to the whole

of

.it. At that time one of three portions of Patna with

which

we are concerned

(namely, the portion we have

called Patna City)

was under a Municipality (the Patna City Municipality) created under the Bengal Act. This

Municipality continued to function in the Patna City

area after the creation of the new Province. The other

two sections were not born

as distinct entities till later

and the

. areas which they now .cover were not under

any municipal or cognate jurisdiction.

The new Province required a new capital and Patna

was chosen for the purpose. Quite naturally the

City

expanded and, following the general pattern in India, a

new area grew up (distinct from the old City) which

housed the headquarters of the new Government. Before

long, it was thought expedient to bring this area

under

municipal jurisdiction and give it a municipality of

its

own rather than place it under the old city munici­

pality. Accordingly, the Legislature of the new State

passed the Patna Administration Act of 1915 (Bihar

and · Orissa Act I of 1915) to enable this to be done.

This Act came into force on 5th January,

1916. The

petitioner impugns sections 3(1) (f) and 5 of the Act and

the notifications made under it on the ground that they

permit delegated legislation which has hurt him and

wrongly rendered him liable

to municipal taxation.

Broadly speaking, the Act empowered the

Local

Government to create a new municipality (later called

the Patna Administration Committee) for this new area

which,

in our arbitrary classification, we have called

Patna Administration. The Act called this new area

"Patna" and defined its boundaries in the schedule to

the Act. This area did not include either the section

which

we have called Patna

City or the one we have

dubbed Patna Village.

Now the Legislature of this new State did not draw

up a new Municipal Act nor did it apply the existing

Bengal Municipal Act

of 1884, which was at that time

in force in the Province,

to this new area which the

Act of

1915 called

"Patna" and which we have called

~

' '

S.C.R. SUPREME COURT REPORTS 293

Patna Administration. Instead, by section 3(1) (f) it

empowered the Local Government to

"extend to Patna the provisions of any section of

the said Act" (the Bengal Municipal Act of 1884)

"subject to such restrictions and modifications as the

Local Government may think fit."

This is a part of the impugned portion. Section 5,

which is also impugned, runs-

"The Local Government may at any time cancel

or modify any order under section 3."

Section 6(b) is also relevant, though it is not challeng­

ed. It says, omitting unnecessary words, that-

"The Local Government may ......... .

(b) ........ include within Patna any local area in

the viciruty of the same and defined in the notification."

We refer to this here because the area we have called

Patna Village was later brought under the jurisdiction

of a new municipality called the Patna Administration

Committee

by action

taken under this section.

Armed with the powers which this Act conferred, the

Local Government created the new Municipality and

called it the Pa.tna Administration Committee and, by

a

series of notifications with which we are not

concern­

ed, extended certain sections of the Bengal Municipal

Act

of 1884 to the area which we have called

Patna

Administration.

The result

of all this was that up to 1922 there was

in existence the

Patna City Municipality with juris­

diction over the area we have called Patna City : the

whole of the Bengal Municipal Act of

1884 applied

there.

Side by side was the new municipality called

the Patna Administration Committee holding sway

over the new area which we have called Patna Admi­

nistration. The Bengal Municipal Act did not apply to

this area of its own force ; only certain sections which

the Local Government had picked out under powers

conferred

by the

Patna Administration Act of 1915

were applied there. The third area, which we have

called Patna Village, and which is the area which really

concerns

us, was free from municipal control.

1954

!Wfaarain Singh

.v.

· Tlzt Chairman,

Patna

Administration

Cornmittu, Patna,

and Anot/ztr.

.Bo«J·

1954

Rajnarain Singh

·V.

The Chairman,

Patna

Adminlsiration

, Committee Patna,

and Another.

Bose J.

294 SUPREME COURT REPORTS [1955]

In 1922 the Provincial Legislature enacted the Bihar

and Orissa Municipal Act, 1922 (Bihar and Orissa

Act VII of 1922). It repealed the whole of the Bengal

Municipal Act

of 1884 and substituted the new Act of

1922 for it. This only affected the

Patna City area and

did not affect the Patna Administration area because

the Bengal Act was never applied to that area

as such.

The portions of it which were picked out

to have force

there were applied

by reason of

the Patna Administra­

tion Act, 1915, and that constituted, in truth and in

fact, independent legislation. The result

was that the

new Act

of 1922 came into effect in the

Patna City area

and the sections

of the Bengal Act which were applied

by reason of the

Patna Administration Act continued

.in force in the Patna Administration area. The area

which we have called Patna Village was still unaffected.

Understandably, the new Province preferred its own

legislation to that

of Bengal. But despite

the passing

of the Bihar and Orissa Municipal Act in 1922, the Local

Government, acting under section 3(1)

(f) of the

Patna

Administration Act, 1915, could only extend sections

of the Bengal Act to the Patna Administration area

and not sections

of its own Act. This was because of

section 3(1) (a) whose provisions

we need not examine .

To set this right the Bihar and

Orissa Legislature

passed an amending Act in 1928 (Bihar and Orissa

Act IV of 1928) called the Patna Administration

(Amendment) Act

of 1928. But that only provided for

the future.

So far as the present and . the past were

concerned, section 4

of the amending Act provided-" Any section of the Bengal Municipal Act, 1884,

extended to Patna under clause ( f) of sub-section ( 1) of

s.ection 3. of the said Act" (that is, the Patna Adminis­

tration Act, 1915) "shall be deemed to continue to

extend to Patna until the extension of such section to

Patna is expressly cancelled by notification."

Three years later, the Governor cancelled all previous

notifications extending sections

of the Bengal Act of

1884, and the Bihar and

Orissa Act of 1922, to the

Patna Administration area. In their plac~s he picked

out certain sections

of the Bihar and

Orissa Act of 1922,

modified others, and extended the lot so selected . and

•

•

•

S.C.R. SUPREME COURT REPORTS 295

modified to the Patna Administration area. This was

done by Notification No. 4594 L.S.G. dated 25th April,

1931. It gave a sort of fresh Municipal Code to this

area. There were, however, significant differences bet­

ween this and the Act of 1922 ; for example, sec­

tions 4, 5, 6, 84 and 104 of the Act of 1922 were omitted

altogether.

Nothing further happened till

1951. In the

mean­

while, the Constitution of India came into force on

26th January, 1950. We refer to this . because before

the Constitution the Local Government

was empowered

to

act under section 3 ( 1) ( f) and section 6 (b) of the

Patna Administration Act,

1915. After the Constitution

these powers were transferred to the Governor of Bihar.

During this interval Patna

was expanding and the

area which

we have called Patna Village, originally just

a village area, began to

be built upon. It adjoined the

Patna Administration area ; only a road separated the

two. It

was therefore felt that this should also be

brought under municipal control. But instead of

creat­

ing a third. municipality the authorities thought it best

to place it under the jurisdiction of the Patna Adminis­

tration Committee. Here again, instead of legislating

direct they fell back on the Patna Administration

Act,

1915, as amended in 1928.

On 18th April, 1951,

a notification was published in the Gazette by

order of the Governor of Bihar. It is Notification

No.

MVP-45/50-3645

L.S.G. dated 11th April, 1951. It

runs as follows :

"In exercise of the powers conferred by clause (b)

of section 6 of the Patna Administration Act,

1915,

(Bihar and

Orissa Act I of 1915), the Governor of Bihar

is pleased to declare that the area defined below is in-

cluded within Patna

..................

"

The area referred to is the third of the areas we are

considerirtg, namely the one we have called Patna

Village.

The effect of this was to bring Patna Village

under the municipal control

of the Patna

Administra­

tion Committee.

Five days later, the Governor of Bihar picked sec­

tion 104 out of the Bihar and Orissa Municipal Act of

1954

Rajnarain Singh

v.

The Chairman,

Patna

Administration

Committee, Patna

and Another·

Bose].

.1954

Rajnarain Singh

·v. .

The Chairman,

Patna

Administration

Committee, Palna,

and AnotMr.

Bose].

296 SUPREME COURT REPORTS [1955]

1922, modified it and extended it in its modified form

to the Pat11a Administration and Patna Village .areas.

This

was by Notification No. M/

Al-201-51-406 L.S.G.

dated 23rd April, 1951. The modified version ran as

follows:

"104. Assessment of taxes-When the Patna Ad­

ministration Act, 1915, (B & 0 Act I of 1915), is first

extended to any place, the first tax on holdings, latrines

or water may

be levied from the beginning of the

quarter next to that in which the assessment

of the tax

has been completed in the area to which the Act is

extended."

The High Court, purporting to apply In re The Delhi

Laws Act, 1912(

1

)

held that the impugned sections and

the notifications complained of are

intra vires.

We are only concerned with the

Patna Village area

in this case. The appellant and those he represents all

live in that area and are the ones who impugn the valid­

ity of the taxes levied on them. They were brought

under Municipal control on 18th April,

1951. The

Bengal Municipal Act of 1884 was no longer one of the

existing

laws in the

State of Bihar 011 that date. It

was repealed in full in 1922 and was replaced by the

Bihar and Orissa Municipal Act

of 1922. The selected

sections

of the Bengal Act of 1884 which the Local

Government had picked out and applied to

Patna Ad­

ministration were also repealed on 25th April, 1931,

and in their place was substituted another set of sec­

tions picked out by the Local Government from the

Bihar and Orissa Act

of 1922 and modified in places.

The facts accordingly narrow down to this.

In

1928 an executive authority (the Local Govern­

ment

of Bihar and Orissa), subject to the legislative

control of the Bihar and Orissa Legislature,

was em­

powered

by that Legislature (because of Act I of 1915

amended by Act

IV of 1928) to do tl1e following things :-

( 1) to cancel or modify any existing Municipal

laws in the Patna Administration area ;

(2) to extend to this area all or any

of the sections

of the Bihar and

Orissa . Municipal Act of · 1922

(1) [1951) S.C.R. 747.

_ ...

•,

-

S.C.R. SUPREME COURT REPORTS 297

subject to such restrictions and modifications as it

considered fit ;

(3) to add to the Patna Administration area other

areas not already under municipal control.

This, in short, is the effect of sections 3(1) (f), 5 and

6(b) of the Patna Administration Act of 1915 as amend­

ed in

1928. Armed with this authority, the Local

Government (and later

· the Governor) exercised all

three powers.

On 25th April, 1931, the Local Government repealed

the existing law in the Patna Administration area,

namely the sections of the Bengal Act of

1884 which

had been applied there from time to time.

In its place,

it introduced a new

set of law culled from the Bihar

and

Orissa Act of 1922 with such restrictions and modi­

fications

as it thought fit. Then on 18th April, 1951,

the Governor added

Patna Village to the Patna Adminis­

tration area. And finally, on 23rd April,

1951, he added

a modified version of section

104 of the Bihar and

Orissa Municipal Act of

1922 to the Municipal laws in

these two combined areas.

The first question

is whether the notification of 25th

April,

1931, can be attacked by the petitioner. In our

opinion, it cannot. As

we have already pointed out,

this notification

gave a sort of fresh Municipal

Code to

the Patna Administration area. But it did not affect

the area with which

we are concerned namely, the Patna Village area. It was limited to Patna Adminis­

tration. The petitioner therefore cannot challenge it

because it

does not affect him and the question whether

it

is open to challenge by other persons does not arise.

We are accordingly unable to give him the declaration

which he

seeks regarding that notification.

We turn next to the notification of 23rd April,

1951.

This does affect him because it subjects him to taxa­

tion. It

was made under section 3(1) (f), therefore, it

will

be necessary to examine (1) whether the notification

travels beyond the impugned portion of the Act

and (2) if not, whether section 3(1)

· (f) is itself ultra

vires. But we cannot do this until we examine the

decision of this Court iri the Delhi Laws Act case(1).

(1) [1951) S.C.R. 747.

1954

Rajnarain

Singh

'<·

The Chairman,

Patna

Administration

Commit[fe, Patna,,

and Another.

Bose].

1954

~

Rajnlzrain' Sin'gh

v.

Tht·Ghain1ran,

Palha

Adniinistraiion

Committet; Palha,

and -An'Olher.

Bose']

298 SUPREME COURT REPORTS [1955]

Because of the elaborate care with which every

aspect of the problem was examined in that

case, the

decision has tended to become diffuse, but if one con­

centrates on the matters actually decided and forgets

for a moment the reasons given, a plain pattern

emerges leaving only a narrow margin of doubt for

future dispute.

The Court had before it the following problems. In

each case, the Central Legislature had empowered an

executive authority under its legislative control to

apply, at

"its discretion, laws to an area which was also

under the legislative

sway of the Centre. The varia­

tions occur in the type of laws which the executive

authority

was authorised to select and in the modifi­

cations which it was empowered to make. in them.

The

variations were as follows :

(1) Where the executive authority was permitted,

at its discretion, to apply without modification (save

incidental changes such

as name and place), the whole

of any

Central Act already in existence in any part of

India under the legislative

sway of the Centre to the

new area:

This was upheld by a majority of six to one.

(2) Where the executive authority was allowed to

select and apply a Provincial Act in similar circums­

tances :

This

was also upheld, but this time by a majority

of five

to two.

(3) Where the executive authority

was permitted to

select future Central laws and apply them

in a similar

way:

This was upheld by five to two.

( 4) Where the authorisation was to select

futm:

Provincial laws and apply them as above :

This was also upheld by five to two.

(5) Where the authorisation was to repeal laws

already in force in the area and either substitute

nothing in their places or substitute other laws,

Central or Provincial, with er without modificat\on :

This was held !e:> ~ 14itfa 11ires by a majority of four

to three.

[

(

y

'-· ·.

}

'

S.C.R. SUPREME COURT REPORTS 299

(6) Where the authorisation was to apply existing

laws, either Central or Provincial, with alterations and

modifications ; and

(7) Where the authorisation

was to apply future laws

under the same conditions :

The

views of the various memebers of the Bench were

not

as clear cut here as in the first five cases, so it will

be necessary to analyse what each Judge said.

The opinion of Kania

C. J. will be found at pages 794-

797. · Put briefly his view was that only Parliament

can effect modifications in any "essential legislative

function" viz., "the determination of the legislative

policy and

its formulation as a rule of

conduct." . For

this reason

he was prepared to uphold what he called "conditional" or "subsidiary" or "ancillary" legisla­

tion, but not the application by an executive authority

of Provincial Acts

to which the Central Legislature had

not applied its mind at all (page

801) ; and for the

same reason he excluded the application

of all future

legislation. .

The present

Chief Justice (Mahajan J. as he then was)

took an

even stricter view. He was prepared to

authorise delegation of ancillary or ministerial powers

(pages

938 and 946) but except for that he said-

"Parliament has no power to delegate its essen­

tial legislative functions to others, whether State Legis­

latures or executive authorities, except, of course,

functions which really in their true nature are. minis­

terial."

As against this, three of the Judges were more liberal.

Das

J. was of the opinion that so long as Parliament

did not abdicate or

efface itself and retained control in

the

sense of retaining the right to recall or destroy

or

set right or modify anything its delegate

did, it could confer on the delegate

all the rights of

legislation which it itself

possessed (page

1068).

Patanjali Sastri J. (as he then was) took the same ex­

treme view (pages 857, 858 and 870). Fazl Ali J. did

not go

as far though he upheld all the Acts which were

impugned in that

case. At page

830 he said that-

20-86 s.a. India/59

1954

Rtefnarain Sinth

v.

Thi Chairman,

' PaJna

A.dministratio11

Commitl(e, Patna,

•nd Another.

• Bose J.

19~4

Rajnarain Singh

. v.

The Chairman,

·Patna

.Administration

Com'mill1_e, Patna,

·and Arweheh.

Bose].

300 SUPREME COURT REPORTS [1955]

"the Legislature must normally discharge its pri­

mary legislative function itself and not through others,

but that it may

"utilise any outside agency to any extent it finds

necessary for doing things which it is unable to do

itself or finds it inconvenient to do. In other words,

it can do everything which

is ancillary to and necessary.

for the full and effective exercise of its power of

legis­

lation."

He dealt with the power to modify at page 846 and

said-

"The power of introducing necessary restrictions

and modifications

is incidental to the power to apply

or adapt the law

........ The modifications are to be

made within the framework of the Act and they cannot

be such as to affect

its identity or structure or the

essential purpose to

be served by it. The power to

modify certainly involves a discretion

tq make suitable

d1anges, but it would be

useless to give an authority

the power to adapt a law without giving it the power

to make suitable

changes."

The other two Judges took an intermediate view.

Mukherjea

J. said that essential legislative functions

cannot

be delegated and at pages 982 to 984 he

indi­

cated what he meant :

"The essential legislative function consists in the

determination or choosing of the legislative policy and

of formally enacting that policy into a binding rule of

conduct,"

and at page 1000-

"With the merits of the legislative policy, the

Court of law has no concern. It

is enough if it is

defin­

ed with sufficient precisii;m and definiteness so as to

furnish sufficient guidance to the Executive Officer who

has got to work it out.

If there is no vagueness or

indefiniteness in the formulation of the policy, I do not

think that a Court of law has got any

say in the

matter."

Dealing with the word "modification" he said at

page 1009--

..

·s.C.R. SUPREME COURT REPORTS 301

"The word 'modification' ........... does not, in my

opinion, mean or involve any change of policy but

is

confined to alteration of such a character which keeps

the policy of the Act intact and introduces such

chang­

es as are appropriate to local conditions of which the

executive Government

is made the Judge ........

"

At pages 1008 and 1009 he explained this further and

limited the modifications to "local . adjustments or

changes of a minor character."

BosE J. contended himself at page 1121-by saying

that the delegation cannot extend to the "altering in

essential particulars of laws which are already in force

in the area in question." But he added at page 1124-

"My answers are, however, subject to this qualifi­

cation. The power to 'restrict and modify' does not

import the power

to make essential changes. It is

con­

fined to alterations of a minor character such as are

necessary to make an Act intended for one area appli­

cable to another and to bring it into harmony with laws

already in being in the State, or to delete portions

which are meant

solely for another area. To alter the

essential character of an Act or to change it in material

particulars

is to legislate, and that; namely the power

to legislate,

all authorities are agreed, cannot be dele­

gated by a Legislature which is not unfett~red."

In our opinion, the majority view was that an

executive authority can

be authorised to modify either

existing or future laws but not in any essential feature.

Exactly what constitutes an essential feature cannot

be enunciated in general terms, and there was some

divergence of view about this in the former case, but

this much

is clear from the opinions set out above : it

cannot include a

.change of policy.

Now coming back to the notificatibn of 23rd April,

1951. Its vire.s was challenged on many grounds but

it

is· enough for the purposes of this case to .Rold that

the action

of the Governor in subjecting the residents

of the

Patna Village area to municipal taxation without

observing the formalities imposed

by sections 4, 5 and

·

6 of the Bihar and Orissa Municipal Act of 1922, cuts

1954

Rajnarain Singh

V•

The Chairman,

Patna

Administration

Committee, Patna,

and Another •

Bose].

f954"

Rajnarain Sinzh

..,

Tiu Chairman,

PtUna

Administration

Committee

1 Patna,

· .and Another.

Bost J.

302 SUPREME COURT REPORTS [1955]

across ·one of it essential features touching a matter of

policy and

so is bad:

The Act of

1922 applied to the whole of Bihar

and

Orissa and one of its essential features. is that no muni­

cipality competent to tax shall be thrust upon. a loca­

lity without giving its inhabitants a chance of being

heard and

of being . given an opportunity to object. Sections 4, 5 and 6 afford a statutory guarantee to that

effect. Therefore, the Local Government

is under a

statutory duty imposed

by the Act in mandatory terms

to listen

to . the objections and take them into

considera­

tion before reaching a decision. In our opinion, this

is a matter of policy, a policy imposed by the Legislature

and embodied in sections

4, 5 and 6 of the Act. We are

not able to brush this aside

as negligible and it cannot,

in our opinion,

be left to an executive authority to tear

up this guarantee in disregard

of the Legislature's

solemnly expressed mandate.

To do so would be to

change the policy

of the law and that, the majority in

the

Delhi Laws Act

case(') say, cannot be done by a

delegated authority. But the notification cannot be

ultra

vires if it does not travel beyond the powers con­

ferred by a law which is good. It will therefore be

necessary to examine the

vires of section 3(1) (£) in the

light of the

Delhi Laws Act decision.

Now what exactly

does section 3 ( 1) ( f) authorise? After

its amendment it

does two things : first, it empowers the

delegated authority to pick any section it

chooses out

of the Bihar and

Orissa Municipal Act of 1922 and

extend it

to

"Patna" ; and second, it empowers the

Local Government and later the Governor) to apply

it with such "restrictions and modifications" as it

things fit.

In the Delhi Laws Act

case('), the following provision

was held to

be good by a majority of four to three :

"The Provincial Government may ...... extend with

such restrictions and modifications

as it . thinks fit ..... .

any

enaWnent which is in force in any part of British

India at the date of such notification."

. Mukherjea and Bose JJ., . who swung tl1e balance,

held that not only could an entire enactment with

(1). [1951]

S.C.R. 747

. " ,

-

II

'·

S.C.R. SUPREME COURT REPORTS 303

modification be extended but also a part of one ; and

indeed that

was the actual

decision in Burah's case(1) on

which the majority founded:

(see Mukherjea J. at page 1000 and Bose J. at pages 1106 and 1121). But

Mukherjea and

Bose JJ., 'both placed a very restricted

meaning

on the words "restriction" and "m,adification"

and, as they swung the balance, their opinions must be

accepted

as the decision of the Court because their

opinions embody the greatest common measure of

agreement among the

seven Judges.

Now the only difference between that

case and this is

that whereas in the former case the whole of an

enact­

ment, or a part of it could be extended, here, any

section can

be picked out. But to pick out a section is

to apply a part of an Act, and to pick out a part is to

effect a modification, and

as the previous decision holds

that a part

of an Act can be extended, it follows that

a

section. or sections can be picked out and applied, as

in Burah's case (

1

)

where just that was done ; also, for the

same reason that the whole or a part of an Act can be

modified ; it follows that a section can also

be modified.

But

even as the modification of the whole cannot be

permitted to effect any essential change in the Act or

an alteration in its policy,

so also a modification of a

part cannot

be permitted to do that either. If that

were not

so, the law, as laid down in the previous deci­

sion, could

be evaded by picking out parts of an Act

only, with or without modification, in such a way

as to

effect an essential change in the Act

as a whole. It

follows that when a section of an Act is selected for

application, whether it

is modified or not, it must be

done so as not to effect any change of policy, or any

essential change

in the

Aat regarded as a whole. Sub­

ject to that limitation we hold that section 3(1) (f) is

intra vires, that is to say, we hold that any section or

sections of the Bihar and Orissa Municipal Act of

1922

can be picked out and applied to

"Patna" provided that

does not effect any essential change in the Act or alter its

policy.

The notification of 23rd April, 1951 does, in our

opinion,

eflect a radical change in the policy of the Act.

(1) 5 I.A. 178.

1954

Rajnarain

Sini:h

v.

The Chairman,

Patna

Administration

Committee, Patna,

and Another.

BoJe].

Rajnarain Singh

v.

The Chairman,

Patna

Administration

Committee, Pntna,

and Another.

Bose].

304 SUPREME COURT REPORTS [1955)

Therefore, it travels beyond the authority which, in

our judgment, section 3(1)(f) confers and consequently

it

is ultra vires.

It is not necessary to examine the vires of section 5

of the Act of

1915 which was also impugned because

no action taken under it has hurt the appellant and

so

he cannot question its vires.

The result is that the appeal succeeds. We hold-

(1) that section 3(1) (f) is intra vires provided always

that the words

"restriction" and "modification" are

used in the restricted

sense set out above ; and

(2) that the notification

of 23rd April, 1951, is ultra

vtres.

The question about the vires of the notification of

'

25th April, 1931, and of section 5 does not arise. ,,

The respondents will pay the appellant's costs here

and in the High Court.

'

Appeal allowed.