TaxTMI 
TaxTMI 
1989 (4) TMI 319
X X X X Extracts X X X X
X X X X Extracts X X X X
....alidity of the above notification and hence the special leave petitions. The writ petitions have been directly filed in this Court challenging the validity of the notification. In view of the importance of the question involved, we have heard the parties on the merits of the cases. We, therefore, grant special leave in the special leave petitions and rule nisi in the writ petitions and proceed to dispose of the appeals and the writ petitions by this common judgment. Section 87 of the Reorganisation Act is in the following terms: "87. Power to extend enactment 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." There are other provisions of this Act which will be referred to later. But it is necessary to refer to s. 87 here for a specific purpose and that is to point out that the provisions of section 87 are pari materia with the provisions of Section 7 of the Delhi Laws Act, 19 12 and Section 2 of the Ajmer Marwara (Extension of Laws) Act, 1947, which, for conve....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Were nine States in Part A (one of which was Punjab, earlier known as East Punjab), nine States in Part B (which included Pepsu), ten States in Part C (which included Himachal Pradesh) and only one State, namely, Andaman and Nicobar Islands, in Part D. At this stage, although several of the former Indian States had acceded to the Indian Union, the process of their integration as component units of the Indian Union was not complete. Some units were accepted as units of the Union in the form in which they existed at the time of independence while some were formed by grouping together one or more of the former princely States. After the recommendations of the States Reorganisation Commission in 1955, the Constitution was amended to classify the units of the Indian Union into States and Union Territories. At the time of the 1956 reorganisation one State of Punjab was created by merging the erstwhile States of Pepsu and Punjab. In 1966 a new State of Haryana was created by carrying out certain territories from the State of Punjab. Certain hill areas of the Punjab were merged with the adjoining Union Territory of Himachal Pradesh. A new Union Territory of Chandigarh was carved out whi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....substance, as may be necessary or proper in regard to the matter before the court, tribunal or authority. (2) Any reference to the High Court of Punjab in any law shall, unless the context otherwise requires, be construed, on and from the appointed day, as a reference to the High Court of Punjab and Haryana. The dispute in this batch of cases is regarding the applicability of certain rent laws to the Union Territory of Chandigarh. The territories originally comprised in the former Province of East Punjab--later designated as the State of Punjab--were governed by the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 'principal Act' or the '1949 Act'). This Act applied to all urban areas in the State of Punjab. Section 2(j) of that Act defined 'urban area' as any area administered by a municipal committee, a cantonment board, a town committee or a notified area committee or any area declared by the State Government by notification to be an urban area for the purposes of the Act. The Central Government had earlier issued, under section 89, the Punjab Reorganisation (Chandigarh) (Adaptation of Laws on State and Concurrent Subjects) Order, 1968 w.e.f. 1.11.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....igarh. It reads: "Section 3: Extension of East Punjab Act 111 of 1949 to Chandigarh-- Notwithstanding anything contained in any judgment, decree or order of any court, the Act shall, subject to the modifications specified in the Schedule, be in force in, and be deemed to have been in force with effect from 4th day of November, 1972 in the UniOn Territory of Chandigarh, as if the provisions of the Act so modified had been included in and formed part of this section and as if this section had been in force at all material times." Three features of the above legislation may be emphasised at this stage. The first was that, though this purported to extend the principal Act to Chandigarh, it was in truth and substance a Parliamentary enactment applicable to Chandigarh incorporating within itself by reference, for purposes of convenience and to avoid repetition, all the provisions of the principal Act. The second was that the Act was given retrospective effect from 4.11.72, the date on which the previous notification under section 89 had been gazetted with a view to regularise all proceedings for eviction which might have been initiated during the interregnum. Thirdly, the pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of 1976 except that a new definition of "specified landlord" was added in s. 2 and the other provisions verbally altered in consequence. This amendment came into force w.e.f. 16.11. 1985. When the last of the above developments took place, the Central Government considered it necessary to extend the 1985 Act to the territory of Chandigarh. In order to effectuate this object, it issued a notification dated 15.12.86 purportedly in exercise of its powers under section 87 of the Reorganisation Act. By this notification the Central Government extended to the Union Territory of Chandigarh the provisions of the 1985 Act as in force in the State of Punjab at the date of the notification (i.e. to say as on 15.12.1986) and subject to the modifications mentioned therein. The resultant position is that while the provisions of the principal Act had been brought into force in the Union Territory of Chandigarh w.e.f. 4.11.72 by an Act of Parliament, the provisions of the 1985 Act have been extended to the territory of Chandigarh by means of a notification of the Central Government issued under s. 87. The short question posed before us is whether the latter "extension" is perm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ree important directions: (i) S. 87 is not transitional in nature but confers an all time power on the executive. This will be clear if one contrasts it with s. 89. Section 89 gives a limited power to the Central Government to adapt existing laws within a period of two years. Though, as will be noticed later, s. 89 is wider in certain respects, it is clearly a transitory provision intended to enable the Central Government to tide over the difficulties caused by the sudden creation of a new territory and the immediate need for having laws applicable therto. The transitoriness is indeed emphasised by the concluding words of s. 89, (which are really superfluous) that the adaptation will hold the field only until they are altered, repealed or amended by a competent legislature or authority. But s. 87 empowers the Central Government to extend any legislation to Chandigarh at any time: even today, twenty three years after the passing of Reorganisation Act. (ii) The second feature of s. 87 is this. Under it, the Central Government could extend to the Union Territory any law in force in any part of India. For instance, it could be the Rent Control Act in force in Punjab or the Rent Contr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....any part of India at any time between 1966 and the date of the notification. Parliament, while enacting the Reorganisation Act, could certainly have had no knowledge or even inkling of possible laws that might be enacted in future in any part of the country on any subject. The effect, therefore, of s. 87 would be that the entire legislation for the Union Territory, in respect of any particular subject, would entirely depend upon the fancy of the Central Government without any sort of legislative or parliamentary application of mind, except the fact that some legislature in some part of the country has considered the law good enough for the conditions prevailing in that territory. Learned counsel contends that these facets of section 87 clearly render it an instance of excessive delegation by Parliament to executive amounting, in effect, to the total abdication by Parliament of its legislative powers in regard to Chandigarh. The problem posed before us is, what Chinnappa Reddy, J. in Registrar of Cooperative Societies v. Kunhambu, [1980] 2 SCR 260 described as, the "perennial, nagging problem of delegated legislation and the so called Henry VIII clause". This is an issue ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....legating some of their powers of legislation to such other agencies, bodies or authorities as they may choose, so long as they do not altogether divest themselves of their legislative power and confer them on another and so long as they retain the power, whenever it pleases them, to remove the agency they have created and set up another or take the matter directly into their own hands. The reasons put forward in support of this line of thought are these: (1) The whole doctrine of excessive delegation is based either on the doctrine of separation of powers or on the doctrine of the law of agency: "delegata potestas non potest delegari", neither of which can validly apply to the constitutional context we are concerned with. (2) The Privy Council, ever since its leading decision in R. v. Burah, [1878] 51.A. 178, has taken this view consistently. This is also the view to which American and Australian courts have veered round in recent years. (3) The doctrine enunciated in the above cases is so difficult of practical application and has resulted in such a large number of separate judgments that litigants are encouraged to raise the plea in respect of every conceivable piece....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pointed out that, so long as the legislature has preserved its capacity in tact and retained control over its delegate, so as to be able, at any time, to repeal the legislation and withdraw the authority and discretion it had vested in the delegate, it cannot be said to have abdicated its legislative functions. Chinnappa Reddy, J. in Kunhambu, [1980] 2 SCR 260, did not wish to be drawn into the pros and cons of the above line of reasoning. His Lordship observed that the clear trend of a large number of the decisions of this Court was in favour of the "policy" and "guidelines" theory and he was content to adopt the same for the purposes of the case before the Court. This theory, which is capable of being formulated in broad terms, though difficult of practical application to individual cases as and when they arise, can be set out best in the words of Reddy, J. in the above case: "It is trite to say that the function of the State has long since ceased to be confined to the preservation of the public peace, the exaction of taxes and the defence of its frontiers. It is now the function of the State to secure to its citizens 'social, economic and political jus....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... provision empowering delegation or the other provisions of the statute, the preamble, the scheme or even the very subject matter of the statute. If guidance there is, wherever it may be found, the delegation is valid. A good deal of latitude has been held to be permissible in the case of taxing statutes and on the same principle a generous degree of latitude must be permissible in the case of welfare legislation, particularly those statutes which are designed to further the Directive Principles of State Policy." The same view was taken by Khanna J. in Gwalior Rayon, [1974] 2 'SCR 879 when,, after reviewing the entire literature on the subject, he observed: "It would appear from the above that the view taken by this Court in a long chain of authorities is that the legislature in conferring power upon another authority to make subordinate or ancillary legislation must lay down policy, principle, or standard for the guidance of the authority concerned. The said view has been affirmed by Benches of this Court consisting of seven Judges. Nothing cogent, in our opinion, has been brought to our notice as may justify departure from the said view. The binding effect of that vie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....who took part in the decision in regard to the constitutionality of certain specified enactments, the reasoning in each case was different and it is difficult to say that any particular principle has been laid down by the majority which can be of assistance in the determination of other cases". Thirdly, Shama Rao, [1967] 2 SC 650 is said to be a binding decision of a Constitution Bench of this Court to the contrary and that has to be followed by us. Since the Delhi Laws Act case, [1951] SCR 747 was concerned with provisions identical in language to the one before us, it is only proper and appropriate for us to refer to the reasoning of the judges in the Delhi Laws Act case in regard to the provisions the validity of which was upheld: A. Kania CJ. held that all the provisions under consideration were ultra vires to the extent they permitted the extension of Acts other than those of the Central Legislature to the areas in question. His view was that the essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct and these essentials are the characteristics of a legislature itself. These essentials are preserved ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ula to define it, but it should be recognised that the rule against abdication does not prohibit the Legislature from employing any subordinate agency of its own choice for doing such subsidiary acts as may be necessary to make its legislation effective, useful and complete". 3. The conclusions are set but thus: "(1) The legislature must normally discharge its primary legislative function itself and not through others. (2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize 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 legislation. (3) It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency acts as a subordinate authority and does not becom....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... It will be a misnomer to describe such legislation as amounting to abdication of powers because from the very nature of the legislation it is manifest that the legislature had the power at any moment of withdrawing or altering any power with which the authority chosen was entrusted, and could change or repeal the laws which the authority was required to make applicable to the State or States concerned. What is even more important is that in each case the agency selected was not empowered to enact laws,' but it could only adapt and extend laws enacted by responsible and competent legislature. Thus, the power given to the Governments in those Acts was more in the nature of ministerial than in the nature of legislative power. The power given was ministerial, because all that the Government had to do was to study the laws and make selections out of them." He proceeded to point out that. such legislation was neither unwarranted nor unprecedented. 5, Following the line of reasoning in Sprigg v. Sigoau, [1897] A.C. 233 the learned Judge held that what the Central Government had been empowered to do under the impugned legislations was not to enact "new laws" but only &qu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... since it is not possible to foresee all the contingencies and envisage all the local requirements for which provision is to be made. Thus, some degree of flexibility becomes necessary, so as to permit constant adaptation to unknown future conditions without the necessity of having to amend the law again and again. The .advantage of such a course is that it enables the delegate authority to consult interests likely to be affected by a particular law, make actual experiments when necessary, and utilize the results of its investigations and experiments in the best way possible. There may also arise emergencies and urgent situations requiring prompt action and the entrustment of large powers to authorities who have to deal with the various situations as they arise. xxx xxx xxx xxx It is obvious that to achieve the objects which were intended to be achieved by these Acts, they could not have been flamed in any other way than that in which they were flamed". (p. 851-2) C. Patanjali Sastri, J. upheld the validity of all the impugned provisions. His Lordship held that it is as competent for the Indian Legislature to make a law delegating legislative power, both quantitatively and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 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. These, in my opinion, are the limits within which delegated legislation is constitutional provided of course, the legislature is competent to deal with and legislate on the particular subject matter". 2. Dealing with the question whether the statutory provisions under consideration envisaged an unwarrantable delegation of legislative powers to the executive government, the learned Judges said: "If the competent legislature has framed a statute and left it to an outside authority to extend the operation of the whole or any part of it, by notification, to any particular area, it would certainly be an instance of conditional legi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d rest with the Governor General in Council which was considered to be the most competent authority to judge the necessities and requirements of the Province. That this was the policy is apparent from several other legislative enactments which were passed prior to 19 12 and which would show that with regard to areas which were backward or newly acquired or extremely small in size and in which it was not considered proper to introduce the regular legislative machinery all at once, this was the practice adopted by the legislature at that time." 4. one more passage from the opinion of the learned Judge may be set out in regard to two aspects of the impugned provision that were touched upon before us. The learned Judge said: "Of course the delegate cannot be allowed to change the policy declared by the legislature and it cannot be given the power to repeal or abrogate any statute. This leads us to the question as to what is implied in the language of section 7 of the Delhi Laws Act which empowers the Central Government to extend any statute in force in any other part of British India to the Province of Delhi with such 'modifications and restrictions' as it thinks fit. The w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her parts of the country to such area, with such modifications and restrictions as the authority thinks proper, the modifications being limited to local adjustments or changes of a minor character. But this presupposes that there is no existing law on that particular subject actually in force in that territory. If any such law exists and power is given to repeal or abrogate such laws either in whole in part and substitute in place of the same other laws which are in force in other areas, it would certainly amount to an unwarrantable delegation of legislative powers. To repeal or abrogate an existing law is the exercise of an essential legislative power, and the policy behind such acts must be the policy of the legislature itself. If the legislature invests the executive with the power to determine as to which of the laws in force in a particular territory are useful or proper and if it is given to that authority to replace any of them by laws brought from other provinces with such modification as it thinks proper, that would be to invest the executive with the determination of the entire legislative policy and not merely of carrying out a policy which the legislature has already la....
X X X X Extracts X X X X
X X X X Extracts X X X X
....all its powers and give up its control over the subordinate authority to whom it delegates its law making powers. It must not, without preserving its own capacity intact, create and arm with its own capacity a new legislative power not created or authorised by the instrument by which the legislature itself was constituted. In short, it must not destroy its own legislative power. There is an antithesis between the abdication of legislative power and the exercise of the power of legislation. The former excludes or destroys the latter. There is no such antithesis between the delegation of legislative power and the exercise of the legislative power, for however wide the delegation may be, there is nothing to prevent the legislature, if it is so minded, from, at any time, withdrawing the matter into its own hands and exercising its law-making powers. The delegation of legislative power involves an exercise of the legislative power. It does not exclude or destroy the legislative power itself, for the legislative power is not diminished by the exercise of it. A power to make law with respect to a subject must, as we have seen, include within its content, the power to make a law delegating....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the whims of the meanest policy officer in whom, by successive delegation, the legislative power may come to be vested. I do not feel perturbed. I do not share the feeling of oppression which some people may possibly entertain as to the danger that may ensue if the legislature goes to sleep after delegating its legislative functions, for I feel sure that the legislators so falling into slumber will have a rude awakening when they will find themselves thrown out of the legislative chamber at the next general election. I have no doubt in my mind that the legislature after delegating its powers will always keep a watchful eye on the activities of the persons to whom it delegates its powers of legislation and that as soon as it finds that the powers are being misused to the detriment of the public, the legislature will either nullify the acts done under such delegation or appoint some more competent authority or withdraw the matter into its own hands. There is and will always remain some risk of abuse whenever wide legislative powers are committed in general terms to a subordinate body, but the remedy lies in the corrective power of the legislature itself and, on ultimate analysis, i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ding the statutes in question before the court for the following reasons. 1. Two of the Acts under consideration before the court were Acts of British Parliament and had to be looked at through British eyes. In the face of Queen v. Burah, [1878] 5 I.A. 173, there was no doubt that this legislation would have been upheld and it was not necessary to enquire further because no single decision of the Judicial Committee had thrown any doubt on the soundness of Burah's case. 2. Act III however, stood on a different footing as it was an Act of the Indian Parliament of 1950. One had to try to discover from the Constitution itself what concept of legislative power Parliament had in mind while framing the Constitution. The learned Judge observed: "Now in endeavoring to discover from the Constitution what the Constituent Assembly thought of this grave problem. I consider it proper to take the following matters into consideration. First, it has been acknowledged in all free countries that it is impossible to carry on the government of a modern State with its infinite complexities and ramifications without a large devolution of power and delegation of authority. It is needless to cite au....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve to another person or body the introduction or application of laws which are or may be in existence at that time in any part of India which is subject to the legislative control of Parliament, whether those laws were enacted by Parliament or by a State Legislature set up by the Constitution. That has been the practice in the past. It has weighty reasons of a practical nature to support it and it does not seem to have been abrogated by the Constitution." 4. The learned Judge, however, held that second part of section 2 of Act 3 could not be held to be valid for the following reasons: "But I also consider that delegation of this kind cannot proceed beyond that and that it cannot extend to the repealing or altering in essential particulars of laws which are already in force in the area in question. That is a matter which Parliament alone can handle. I See no reason for extending the scope of legislative delegation beyond the confines which have been hallowed for so long. Had it not been for the fact that this sort of practice was blessed by the Privy Council as far back as 1878 and has been endorsed in a series of decisions ever since, and had it not been for the practi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e body entrusted therewith. But others were of opinion that such "abdication" or "effacement" could not even be partial and it would be bad if full powers to do everything that the legislature can do are conferred on a subordinate authority, although the legislature may retain the power to control the action of such authority by recalling such power or repealing the Acts passed by the subordinate authority. A different way in which the second of the above views has been enunciated--and it is this view which has dominated since--is by saying that the legislatures cannot wash their hands off their essential legislative function. Essential legislative function consists in laying down the legislative policy with sufficient clearness and in enunciating the standards which are to be enacted into a rule of law. This cannot be delegated. What can be delegated is only the task of subordinate legislation which is by its very nature ancillary to the statute which delegates the power to make it and which must be within the policy and framework of the guidance provided by the legislature. It is suggested for the petitioners that, since the reasonings of the learned Judges a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se, it will not be helpful as a precedent. Even if this is taken to be the proper approach, an answer to the contention is furnished by Shama Rao [1955] 2 SCR 650, on which considerable reliance was also placed on behalf of the petitioners. The facts in that case were that the legislative assembly for the Union Territory of Pondicherry passed a Sales Tax Act (10 of 1965) in June, 1965. Under s 1(2) of the Act, it was to come into force on such date as the Pondicherry Government may by notification, appoint. S. 2(1) of the Act provided that the Madras General Sales Tax Act, 1959 as in force in the State of Madras immediately before the commencement of the Pondicherry Act, shall be extended to Pondicherry subject to certain modifications. The Pondicherry Government issued a notification on March 1, 1966 appointed April 1, 1966 as the date of the commencement of the Pondicherry Act. Prior to the issue of the notification, however, the Madras Legislature had amended the Madras Act and consequently it was the Madras Act as amended upto April 1, 1966, which was brought into force in Pondicherry. When the Act thus came into force, the petitioner was served with a notice to register himsel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e, there is nothing for it to predicate what the amended Act would be. Such a case would be clearly one of non-application of mind and one of refusal to discharge the function entrusted to it by the instrument constituting it. It is difficult to see how such a case is not one of abdication or effacement in favour of another legislature at least in regard to that particular matter. But Mr. Setalvad contended that the validity of such legislation has been accepted in Delhi Laws Act's case and particularly in the matter of heading No. 4 as summarised by Bose J. in Raj Narain Singh's case. In respect of that heading, the majority conclusion no doubt was that authorisation in favour of the executive to adopt laws passed by another legislature or legislatures including future laws would not be invalid. So far as that conclusion goes Mr. Setalvad is right. But as already stated, in arriving at that conclusion each learned Judge adopted a different reasoning. Whereas Patanjali Sastri and Das JJ. accepted the contention that the plenary legislative power includes power of delegation and held that since such a power means that the legislature can make laws in the manner it liked if it deleg....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... passage in Shelat J's judgment which we have underlined earlier as a correct enunciation by this Court of the Principle emerging from the Delhi Laws Act case; if we do so the only question that will remain to be considered will be whether s. 87 is a case of "abdication or effacement" and the answer to that question has been furnished, in the negative, by the Delhi Laws Act case itself in respect of identically worded provisions. Thus, Shama Rao, in effect, helps the respondents to sustain the validity of s. 87, though it is true that, on a different, if somewhat analogous, provision in the Pondicherry Act, their Lordships reached the contrary conclusion and held there was an "abdication or effacement." But, these niceties apart, we think that s. 87 is quite valid even on the "policy and guideline" theory if one has proper regard to the context of the Act and the object and purpose sought to be achieved by s. 87 of the Act. The judicial decisions referred to above make it clear that it is not necessary that the legislature should "dot all the t's" and cross all the t's" of its policy. It is sufficient if it gives the broadest indication....
X X X X Extracts X X X X
X X X X Extracts X X X X
....any time any law that may exist in any part of India for extension to Chandigarh without any particular rhyme or reason. The force of Sri Swarup's objection on this aspect has been picturesquely brought out by Mahajan J. in a passage in the Delhi Laws Act case: "The choice to select any enactment in force in any province at the date of such notification clearly shows that the legislature declared no principles or policies as regards the law to be made on any subject. It may be pointed out that under the Act of 1935 different provinces had the exclusive power of laying down their policies in respect of subjects within their own legislative field. What policy was to be adopted for Delhi, whether that adopted in the province of Punjab or of Bombay, was left to the Central Government. Illustratively, the mischief of such law-making may be pointed out with reference to what happened in pursuance of this section in Ajmer-Marwara. The Bombay Agricultural Debtors' Relief Act, 1947, has been extended under cover of this section to Ajmer-Marwara and under the power of modification, by amending the definition of the word 'debtor' the whole policy of the Bombay Act has been altered. Und....
X X X X Extracts X X X X
X X X X Extracts X X X X
....totally inadequate to meet the situation for two reasons. There may be more than one law in force on a subject in the contiguous States--say one in Punjab, one in Pepsu and one in Himachal Pradesh etc.--and Parliament was anxious that Chandigarh should have the benefit of that one of them which would most adequately meet the needs of the situation in that territory. Or, again, there may be no existing law on a particular subject in any of the contiguous areas which is why the power had to include the power of extending the laws of any State in India. While, in a very strict sense, this may involve a choice, it is in fact and in the general run of cases, only a decision on suitability for adaptation rather than choice of a policy. It is a delegation, not of policy, but of matters of detail for a meticulous appraisal of which Parliament has no time. Even if we assume that this involves a choice of policy, the restriction of such policy to one that is approved by Parliament or a State Legislature constitutes a sufficient declaration of guideline within the meaning, of the "policy-guideline" theory. The second aspect referred to by Sri Swarup, again, is, in the context, not ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... its proper construction, permits the extension of the laws of another State to Chandigarh only so long as there is a 'vacuum" of laws, on any particular subject, within the Union Territory but that, once Parliament itself steps in and makes laws for the territory, it has assumed legislative responsibilities in respect of that subject and a "transplantation" of laws from elsewhere by extension is neither necessary nor valid, Sri Gujral submits that the raison d'etre of s. 87 is that, as Parliament may not have enough time to attend to the legislative needs of the new territory brought into its fold, it is necessary to provide a machinery by which some laws could enforced in the territory. But here, as early as 1974, Parliament applied its mind and legislated, in respect of landlord-tenant matters, for the Union Territory and having done this, it is for Parliament and Parliament alone to legislate on the subject thereafter. Indeed President issued an ordinance in 1976 and Parliament also amended the law in 1982 in some other respects indicating that Parliament was in full session of the matter. This is one facet of the objection. The other facet is that, by purporting....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g and unusual one, but, on a careful analysis, it will be found to be only a concomitant of the power of transplantation and modification. If a new law is to be made applicable, it may have to replace some existing law which may have become out of date or ceased to serve any useful purpose, and the agency which is apply the new law must be in a position to say that the old law would cease to apply. The nearest parallel that I can find to this provision, is to be found in the Church of England Assembly (Powers) Act, 19 19. By that Act, the Church Assembly is empowered to propose legislation touching matters concerning the Church of England, and the legislation proposed may extend to the repeal or amendment of Acts of Parliament including the Church Assembly Act itself. It should however be noticed that it is not until Parliament itself gives it legislative force on an affirmative address of each House that the measure is converted into legislation. There is thus no real analogy between that Act and the Act before us. However, the provision has to be upheld, because, though it goes to the farthest limits, it is difficult to hold that it was beyond the powers of a legislature which is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....islative powers. To repeal or abrogate an existing laws is the exercise of an essential legislative power, and the policy behind such acts must be the policy of the legislature itself. If the legislature invests the executive with the power to determine as to which of the laws in force in a particular territory are useful or proper and if it is given to that authority to replace any of them by laws brought from other provinces with such modification as it thinks proper that would be to invest the executive with the determination of the entire legislative policy and not merely of carrying out a policy which the legislature has already laid down. Thus the power of extension which is contemplated by section 2 of Part C States (Laws) Act, includes the power of introducing laws which may be in actual conflict with the laws validly established and already in operation in that territory. This shows how the practice, which was adopted during the early British period as an expedient and possibly harmless measure with the object of providing laws for a newly acquired territory or backward area till it grew up into a full fledged administrative and political unit, is being resorted to in late....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ld by the The Queen v. Burah does not extend as far as the latter portion of section 2 of the Part C States (Laws) Act of 1950 endeavours to carry it." (Emphasis added) In support of his "vacuum" theory, counsel also refers to an instance of legislative practice referred to in Kapoor's case [1989] 1 S.C.C. 561. Counsel points out there was a central rent law applicable t9 all cantonments in India, being Act 10 of 1952. In 1957, Parliament decided that the rent law in force in the rest of a State should be allowed to be extended to the cantonment areas in State as well by issue of Government notification, and enacted Act 46 of 1957 for the purpose. However, no such extension under s. 3 of the Act 46 of 1957 was notified for the State of U.P. until Parliament, by passing Act 68 of 1971, statutorily clarified that: "On and from the date on which the United Provinces (Temporary) Control of Rent & Eviction Act, 1947, is extended by notification under section 3 of the Cantonments (Extention of Rent Control Laws) Act, 1957 to the Cantonments in Uttar Pradesh, the Uttar Pradesh Cantonments (Control of Rent & Eviction) Act 1952 (Act 10 of 1952) shall stand repealed.&q....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o "vacuum" left which could be filled in by 'such extension? Again, suppose, initially, a Rent Act is extended by Parliament which does not contain a provision regarding one of the grounds on which a landlord can seek eviction---say, one enabling the owner to get back his house for reoccupation--and then the Government thinks that another enactment containing such a provision may also be extended, can it not be plausibly said that the latter is a matter on which there is no legislation enacted in the territory and that the extension of the latter enactment only fills up a void or vacancy? Again, suppose the provisions of a general code like, say, the Code of Civil Procedure are extended to the Union Territory, should be construe s. 87 so as to preclude the extension of a later amendment to one of the rules to one of the Orders of the C.P.C. merely on the ground that it will have the effect of varying or amending an existing law? We think it would not be correct to thus unduly restrict the scope of a provision like s. 87. The better way to put the principle, we think, is to say that the extension of an enactment which makes additions to the existing law would also be permi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enacted by the 1974 Act and, therefore, amend or modify the 1974 Act. This is true but it does not affect our line of reasoning indicated above. 2 There was considerable argument before us as to whether the modifications introduced by the 1985 Act in the 1949 Act, as reenacted by the 1974 Act, are minor "modifications or restrictions" or incorporate substantial changes in the scheme of the pre-existing law. Counsel for the petitioners contended that the changes introduced by the 1985 Act were substantial and far-reaching. On the other hand counsel for the respondent contended to the contrary. Sri Sehgal, appearing for one of the landlords submitted that the Act already contained provisions enabling any owner to get back his premises when he needed it for his occupation--S. 13(3)(a)(i) and (iv)--and a special provision enabling an Army Officer to expeditiously recover possession of his premises when he needed it for his family--S. 13(3)(a)(i-a) and (c)--and that the provision sought to be introduced by the 1985 Act was only a natural and logical extension. thereof. Counsel for the landlord in SLP 92 17 of 1988 submitted that it was only a procedural change that the 1985 A....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....12.1986, to Chandigarh. 4. There was some discussion before us on the basis of the observations in Lachmi Narain & Ors. v. Union of India & Ors., [1976] 2 SCR 785, as to whether there could be successive notifications under s. 87. But this question, which was answered in the affirmative in Kapoor's case (supra), does not arise here, as there is only one notification under s.87. 5. Learned counsel submitted that the observations of the High Court in para 17 and 26 of the judgment under appeal are not helpful as they refer to extension of laws made under the provisions of Acts I, II and III which had been held valid in the Delhi Laws Act case. This is correct but, as we have pointed out earlier. s. 87 only continued the pattern of Acts I, II and III after being assured by the Supreme Court that there was nothing wrong with it. This is a relevant aspect which has to be kept in mind in consider ing the issues before us. 6. Learned counsel criticised the observations made by the High Court in para 27 of the judgment. The passage referred to seems to echo the observations made in certain decisions of this Court (vide, for e.g. Mukherjea CJ) in Rai Sahab Ram Jawaya Kapur v. State, [19....