TaxTMI 
TaxTMI 
2023 (4) TMI 1450
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....the State Government. In terms of Section 30 of the Act, Karnataka Registration of Births and Deaths Rules, 1970 was promulgated. The Rules of 1970 comes to be repealed by 1999 Rules. Therefore, the Rules with the corresponding Act which was and is holding the field is of 1999. 3. On 18.07.2022, the Government of Karnataka brings in an amendment to Rule 9 of the Rules of 1999 substituting the words 'a Magistrate of First Class or a Presidency Magistrate' to that of an 'Assistant Commissioner (Sub-Divisional Magistrate)'. Protest erupted on this amendment contending that a power that was given to the judiciary is taken away and laid at the hands of the Revenue Authorities. Representation is also submitted to the Government by the Karnataka State Bar Council seeking deletion of the amendment or withdrawal of the amendment. Reasons were indicated in the representation as to why the amendment was unworkable. When the State did not heed to the representation of the Karnataka State Bar Council, an Advocate has presented the subject petition contending that the amendment Act runs counter to the parent Act and is therefore, ultra vires the parent Act and to be quashed on account of it b....
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....the period specified therefor, but within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed. (2) Any birth or death of which delayed information is given to the Registrar after thirty days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority and on payment of the prescribed fee and the production of an affidavit made before a notary public or any other officer authorised in this behalf by the State Government. (3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a magistrate of the first class or a Presidency Magistrate after varifying the correctness of the birth or death and on payment of the prescribed fee. (4) The provisions of this section shall be without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefor and any such birth or death may be registered during the pendency of any such action." (Emphasis supplied) Section 13 deals with delayed registrat....
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....rs and other records kept by Registrars; (l) the correction of errors and the cancellation of entries in the register of births and deaths; (m) any other matter which has to be, or may be, prescribed. 1[(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before the State Legislature.]" (Emphasis supplied) Section 30 empowers the respective State Governments to make Rules to carry out the purposes of the Act with the approval of the Central Government. Rules to be made for several purposes are also enumerated in Section 30. Therefore, Section 30 empowers the State Government to make Rules to carry out purposes of the Act. 10. When the Act came into force in the year 1969, the Government of Karnataka had promulgated the Karnataka Registration of Births and Deaths Rules, 1970. It held the field up to 1999. By a notification dated 30.12.1999, the Government of Karnataka in exercise of its powers conferred under Section 30 of the Act, notifies Rules to be coming into effect from 01.01.2000. Rule 9 becomes germane to be noticed. It runs as follows: "9. Authority for delayed registration and fee payable t....
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....d/- 18/7/2022 (PAPANNA) Under Secretary to Government (S-1) Planning Programme Monitoring and Statistics Department" (Emphasis supplied) The State Government by the amendment Rules substitutes the words in sub-rule (3) of Rule 9 which hitherto read "a Magistrate of the First Class or a Presidency Magistrate" with the words and brackets which now reads "an Assistant Commissioner (Sub-Divisional Magistrate)". By this amendment Rules, the State Government takes away the power of the Magistrate of the First Class and places it at the mercy of the Assistant Commissioner. It is this amendment that brings the petitioner to this Court. In the light of the said contention, the examination is, whether the amendment Rules of 2022, is intra vires the Act, or ultra vires. 11. The power to make Rules is delegated to the State Governments under Section 30 of the Act. Therefore, the Rules that are made are delegated legislation. Delegated legislation can be challenged before the Courts on the ground that it is ultra vires the parent Act. The Court examining the said issue can adjudge the legality and validity of the delegated legislation on the to....
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....year 1999. Sub-rule (3) of Rule 9 clearly depicted what is depicted under the Act, as sub-rule (3) of Rule 9 of the Rules maintains the power of the Magistrate to pass an order in the circumstance of delayed registration of a birth or a death. The amendment to Rule 9 notified on 18.07.2022 substitutes the words with "An Assistant Commissioner (Sub-Divisional Magistrate)". The mandate of the Act is tinkered by the amendment Rule which runs counter to the Act. The amendment to the Rule, a delegated legislation is to the effect that the parent Act itself is amended. This power, I am of the view, is unavailable to the State Government in exercise of its power under Section 30 of the Act. A delegated legislation cannot travel beyond the parent Act which delegates such power to the State to legislate for the purposes of the Act. 14. As observed hereinabove, it is trite law that the Rule making power conferred upon by the parent Act cannot travel beyond the mandate of the parent Act. The view of mine in this regard is fortified by the judgment of the Apex Court in the case of UNION OF INDIA V. A.SRINIVASAN (2012)7 SCC 683 wherein the Apex Court considers the entire spectrum of the law ....
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.... of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto." 26. In Kunj Behari Lal Butail v. State of H.P. [(2000) 3 SCC 40 : AIR 2000 SC 1069] it has been ruled thus : (SCC p. 46, para 13) "13. It is very common for the legislature to provide for a general rule-making power to carry out the purpose of the Act. When such a power is given, it may be permissible to find out the object of the enactment and then see if the rules framed satisfy the test of having been so framed as to fall within the scope of such general power confirmed. If the rule-making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent Act." 27. In St. Johns Teachers Training Institute v. National Council for Teacher Education [(2003) 3 SCC 321 : AIR 2003 SC 1533] it has been observed that : (SCC p. 331, para 10) "10. A regulation is a rule or order prescribed by a superior for the management of ....
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....l review of the legislative Acts. But, we have made all endeavours to keep ourselves confined within the well-known parameters." 30. In this context, it would be apposite to refer to a passage from State of T.N. v. P. Krishnamurthy [(2006) 4 SCC 517] wherein it has been held thus : (SCC p. 529, para 16) "16. The court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity." 31. In Pratap Chandra Mehta v. State Bar Council of M.P. [(2011) 9 SCC 573], while discussing about the conferment of extensive meaning, it has been opined that : (S....
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....ified therefore and any such birth or death may be registered during the pendency of any such action." 16. Certain penalties have also been prescribed under section 23 of the Act of 1969 to those persons who may fail without any reasonable cause to give information which it is his duty to give under any of the provisions of sections 8 and 9. He may face imposition of penalty as prescribed. Similarly, power to prosecute (section 25) and power to compound offences (section 24) are also provided under the frame work of Act of 1969. Therefore, it is clear that any noncompliance or omission to give information attracts penalties/penal provisions. 17. Act of 1969 gives power to the State Government to make rules as per section 30 of the Act of 1969. Same bears significance in the set of factual set up of present case. For ready reference section 30 of the Act of 1969 is reproduced hereinbelow:- "30. Power to make rules.- (1) The State Government may, with the approval of the Central Government, by notification in the Official Gazette, make rules to carry out the purpose of this Act. (2) In particular, and without prejudice to the generality of the fore....
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....tters of POCSO Act and to avoid all these complications, section 13 of Act of 1969 provides mechanism for verification of claim regarding correctness of birth or death beyond one year of its occurrence, before the Judicial Magistrate First Class only and not before the Executive Magistrate. 20. Perusal of section 30 of Act of 1969 reveals that authority/power to make rules to the State Government has been given by the Parliament in respect of section 13(2) and in respect of fees payable for registration is made under section 13. But very specifically, section 13(3) is not under the purview of Rule Making Authority of State Government. In fact, sub-section (2) of section 30 starts with following words:- "In particular, and without prejudice to the generality of the foregoing provision, such rules may provide for", therefore, State Government can make rules as per the letter and spirit of section 30 and 13(3) of Act of 1969 only and cannot go beyond that. 21. In the State of Madhya Pradesh, in exercise of powers conferred by section 30 of the act of 1969, State Government made rules namely M.P. Registration of Births and Deaths Rules, 1999. Earlier rules with the no....
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....ols of adjudication. Executive Magistrate is not equipped with such adjudicatory tools including the authority as referred above. Therefore, understandably, legislative intent under section 13(3) was to confer jurisdiction over JMFC only and not otherwise. 30. Careful reading of section 30 of Act of 1969 if seen in juxtaposition to section 20 of the General Clauses Act, 1897, it makes the case further clear that State Government could not have framed Rules contrary to the directions contained in section 30 of Act of 1969. In other words, the Attempt cannot exceed the Authority. Section 20 of General Clauses Act, 1897 is reproduced hereinbelow for ready reference:- "Section 20. Construction of notifications etc., issued under enactments. - Where, by any Central Act or regulation, a power to issue any notification, order, scheme, rule, form or bye-law is conferred, then expressions used in the notification, order, scheme, rule, form, or byelaw, if it is made after the commencement of this act, shall unless there is anything repugnant in the subject or context, have the same respective meaning as in the Act or Regulation conferring the power." (Emphasis supp....
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....o the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void....." 69. In Additional District Magistrate (Rev.) Delhi Admn. v. Siri Ram reported in (2000) 5 SCC 451, it has been ruled that it is a well recognised principle that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. 70. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi reported in (1975) 1 SCC 421, the Constitution Bench has held that: "18.....These statutory bodies cannot use the power to make rules and regulations to enlarge the powers beyond the scope intended by the Legislature. Rules and regulations made by reason of the specific power conferred by the statute to make rules and regulations establish the pattern of conduct to be followed. ..." 71. In State of Karnataka v. H. Ganesh Kamath reported in (1983) 2 SCC 402, it has ....
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....be held to be laying down any guidelines. Thus, by reason of such a provision alone, the regulation-making power cannot be exercised so as to bring into existence substantive rights or obligations or disabilities which are not contemplated in terms of the provisions of the said Act. 75. In the aforementioned case, while discussing further about the discretionary power, delegated legislation and the requirement of law, the Bench observed thus: "73. The image of law which flows from this framework is its neutrality and objectivity : the ability of law to put sphere of general decision-making outside the discretionary power of those wielding governmental power. Law has to provide a basic level of "legal security" by assuring that law is knowable, dependable and shielded from excessive manipulation. In the contest of rule-making, delegated legislation should establish the structural conditions within which those processes can function effectively. The question which needs to be asked is whether delegated legislation promotes rational and accountable policy implementation. While we say so, we are not oblivious of the contours of the judicial review of the legislative A....
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....f the delegated legislation. The delegate is not intended to travel wider than the object of the legislature. The delegate's function is to serve and promote that object, while at all times remaining true to it. That is the rule of primary intention. Power delegated by an enactment does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provision. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary its ends. (See Section 59 in chapter "Delegated Legislation" in Francis Bennion's Statutory Interpretation, 3rd Edn.)......." 79. In McEldowney v. Forde reported in [1971] A.C. 632 : [1969] 3 WLR 179, Lord Diplock explained the role of the Courts in this area in the following words: "The division of functions between Parliament and the courts as respects legislation is clear. Parliament makes laws and can deleg....
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.... of Sukhdev Singh (supra), while explaining the fine distinction between a rule and regulation and also the power of the delegate authority to frame such rules or regulations has made few very important observations which we must take notice of and quote as under: "11. The contentions on behalf of the employees are these. Regulations are made under the statute. The origin and source of the power to make regulations is statutory. Regulations are selfbinding in character. Regulations have the force of law inasmuch as the statutory authorities have no right to make any departure from the regulations. 12. Rules, regulations, schemes, bye-laws, orders made under statutory powers are all comprised in delegated legislation. The need for delegated legislation is that statutory rules are framed with care and minuteness when the statutory authority making the rules is after the coming into force of the Act in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. xxxxxxxxx 14. Subordinate legislation is made b....