{"id":196593,"date":"1962-08-16T00:00:00","date_gmt":"1962-08-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sundarabai-vs-state-of-maharashtra-and-ors-on-16-august-1962"},"modified":"2016-10-07T08:08:35","modified_gmt":"2016-10-07T02:38:35","slug":"sundarabai-vs-state-of-maharashtra-and-ors-on-16-august-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sundarabai-vs-state-of-maharashtra-and-ors-on-16-august-1962","title":{"rendered":"Sundarabai vs State Of Maharashtra And Ors. on 16 August, 1962"},"content":{"rendered":"
Bombay High Court<\/div>\n
Sundarabai vs State Of Maharashtra And Ors. on 16 August, 1962<\/div>\n
Equivalent citations: AIR 1967 Bom 203, (1963) 65 BOMLR 821, ILR 1964 Bom 1<\/div>\n
Author: Abhyankar<\/div>\n
Bench: Abhyankar, Palekar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  Abhyankar, J. <\/p>\n
 (1) The State of Maharashtra issued a preliminary notification on 29-8-1959 under S. 4 of the C. P. and Berar Municipalities Act. 1922.  By that notification,. respondent No. 1 signified its intention to declare the local areas comprising of four villages of Desaiganj, Wadsa, Nainpur and Virsitukum in Gadchiroli  Tahsil of the  Chanda district to  be a municipality.  This notification was followed by subsequent notification bearing No. DTM (M) 2558(a)-A, dated 26-4-1961.  Under this latter notification , the Government was pleased to declare the area comprising in these four villages to be a municipality from 1st May 1961. The Government is empowered to declare a municipality comprising of certain areas under S. 5 (1) (a) of the C. P. and Berar Municipalities Act.  It may be noted here that  in his final notification of 26-4-61,  through some inadvertence mention of village Virsitukum is omitted, though  the village was mentioned in the preliminary notification.  It is not now disputed  however that the boundaries  of the area comprising the municipal limits as given in the preliminary notification and the final notification  are identical.  Therefore, there is not dispute that village Virsitukum is also comprised within the  municipality of Desaiganj.\n<\/p>\n
 (2)  On the same date the State Government issued two more notifications.  They are as follows:\n<\/p>\n
 “No DTM (M)-2558(d) A Whereas the circumstances of the  Desaiganj Municipality  declared under Government notification.  Urban Development and  Public Health Department No. DTM (M) 2558 (a)-A, dated the 26th April 1961, are such that, in the opinion of  Government, the provisions of Ss. 10,16,18 and sub-section (3) of S. 175 of the Central Provinces and Berar Municipalities Act, 1922 (II of 1922) are unsuited thereto;\n<\/p>\n
 Now, therefore, in exercise of the powers conferred by  S. 9 of the said Act, Government is pleased to direct that the provisions contained in S. 10 Shall apply to  the said Municipality in the modified form as specified in the schedule annexed  hereto and the provisions contained in Ss. 16, 18 and sub-section (3) of  S. 175 shall be deemed to be  withdrawn and in their place the modified provisions as specified in the said schedule shall operate with respect to the said  Municipality, namely;\n<\/p>\n
SCHEDULE<\/p>\n
 (1)  In S. 10 after sub-section (7) the following sub-section shall be inserted, namely:\n<\/p>\n
   “(8) Notwithstanding  anything contained in sub-sections (2) to (7), the Committee of the Desaiganj Municipality shall, until a committee consisting of  elected members can be constituted, consist of thirteen members appointed by Government  by a notification.”\n<\/p>\n
 (2) For Ss. 16 and 18, the following sections shall be substituted, namely:\n<\/p>\n
  “16  The term of office of the members of the Committee of the Desaiganj Municipality Constituted under  sub-section (8) of S. 10 shall  expire on the 30th April 1963  or on the date on which the successors of the members of the Committee take office, whichever is later.”\n<\/p>\n
 “18 The President and Vice-President of the Committee of the Desaiganj Municipality constituted under  sub-section (8) of S. 10 shall be elected by the members appointed by the State Government.”\n<\/p>\n
  (3)  For  sub-section (3) of S. 175, the following  sub-section shall be substituted, namely:\n<\/p>\n
 “(3)  All rules other than rules made  under the first proviso to sub-section (3) of S. 86 DTM (M) 2558-(e)-A.  In exercise of the powers conferred by sub-section (8) of Section 10 of the Central Provinces and Berar Municipalities Act 1922 (II of 1922), as amended  by Government Notification.  Urban Development and Public Health Department No. DTM (M) 2558(d) A, dated the 26th April 1961. Government  is pleased to appoint the following persons to  be members of the Desaiganj Municipal Committee in the Chanda District namely:\n<\/p>\n
   1. Shri Gyanchand Dunichand, President<\/p>\n
   2. Shri Doma Saoji Dahikar, Vice-President<\/p>\n
   3. Shri Haridas maniram Gedam.\n<\/p>\n
   4. Shri Abdul Hamid Abdul Shakur<\/p>\n
   5. Shri Ambalal Shiwabhai<\/p>\n
   6. Smt Sundrabai w\/o Pundlik Sonkusare.\n<\/p>\n
   7. Shri Maidi  Husain.\n<\/p>\n
   8. Shri Pandurang Laxman  Sapate.\n<\/p>\n
   9. Shri Jasanmal Ramdas.\n<\/p>\n
 10. Shri Tukaram Honduji Sahare.\n<\/p>\n
 11. Shri Govinda Tukaram Raut.\n<\/p>\n
 12. Shri Mukhru Mangru.\n<\/p>\n
 13. Shri Pandurang Somaji.”\n<\/p>\n
 (3) By the first of these notifications bearing No. DTM(M)-2558-(d)-A, the Government purported to act under S. 9 of the Municipalities Act.  In exercise of the powers conferred by S. 9 of that Act, the Government directed that the provisions of S. 10 of the Municipalities Act shall apply to the Municipality of Desaiganj in the modified  form given in the schedule. Similarly, Ss. 16 and 18 of  the Municipalities Act were substituted for original  Ss. 16 and 18  in their application  to the Municipality of Desaiganj as shown in the first notification.  There was a slight modification  in sub-section (3) of S. 175 of the Municipalities Act and in such modified  form this sub-section was made applicable to the new Municipality of Desaiganj.\n<\/p>\n
 (4)   By the second notification No. DTM(M)-2558-(e)-A, the State Government purported to exercise powers conferred by it on itself in the new sub-section (8) of S. 10 which it made applicable to Desaiganj Municipality by the first notification.  In exercise of this  power, the Government appointed 13 persons to be members of the Desaiganj Municipality as given in the second notification.  It has to be noted that against the name of Shri Gyanchand Dunichand it was mentioned that he was the President  and against the name of Shri Doma Saoji Dahikar, it was mentioned that he was a Vice-President. It has to be noted that this notification was in respect of the  appointment of members of the Desaiganj Municipality and not apparently for the appointment of Office-bearers of the Municipality.\n<\/p>\n
 (5)  Thereafter on 11-7-1961, the State Government issued two more notifications  as follows:\n<\/p>\n
 “No. DTM(M)-2558(d)-A Corrigendum In exercise of the powers conferred by Section 9  of the Central Provinces and Berar Municipalities Act 1922, S. 18 of the said Act as applied in respect of the Municipal Committee, Desaiganj, by Government Notification No. DTM(M)-2558(d)-A, dated the 26th April 1961, should be replaced by the following.\n<\/p>\n
   “18.  The President and Vice-President of the Committee of the Desaiganj Municipality constituted under sub-section (8) of  S. 10 shall be nominated by the State Government from amongst the members  appointed to the Committee.”\n<\/p>\n
No. DTM(M)-2558-(c)-A, Addendum.  In exercise of the powers conferred by S. 18 of the Central Provinces and Berar Municipalities Act, 1922, as amended by Government Notification, Urban Development and Public Health Department No. DTM(M)-2558-(d)-A, dated the 26th April 1961, read with Government Notification,  Urban Development and Public Health Department, No. DTM(M)-2558-(d)-A, dated the 11th July 1961, following should be added to the Government Notification No. DTM(M)-2558-(e)-A dated the  26th April 1961, published in the ‘Maharashtra Government Cazette Extraordinary, ‘Nagpur Division Supplement, Part I-A, dated the 28th April 1961:\n<\/p>\n
   Government is also pleased to appoint Shri Gyanchand Dunichand and Shri Doma Saoji Dahikar as President and Vice-President, respectively of the Municipal Committee, Desaiganj, for the period for which the nominated  body holds office.”\n<\/p>\n
 (6)  The first notification is styled as Corrigendum.  By this notification, substituted S. 18 enacted by the State Government in the first notification dated 26-4-1961 was replaced by new S. 18 in its application to Desaiganj Municipality.  By the second notification dated 11-7-1961, which is called  Addendum, the Government purported to direct that the  latter portion of that notification should be added to the earlier Government Notification No. DTM(M)-2558-(e)-A, publishing the names of the members appointed by the Government.\n<\/p>\n
 (7)  The  petitioner Sundarabaj is one of the persons appointed by the Government as a member of the Municipal Committee at Desaiganj.  The petitioner had originally alleged that village Virsitukum did not appear to  be included within the municipal area of Desaiganj  Municipality as declared by the Government.  In view of the return this position is not now contested.\n<\/p>\n
 (8)  The petitioner has placed on record the questions asked on the floor of the house  in the Legislative Assembly of the State of Maharashtra on 19th July 1961, and the answers given by the Hon’ble the Minister in charge of local  Self-government.  They are to  be found as annexures B at pages 16 and 17.  The petitioner has challenged  the action of the State Government in issuing these various notifications after constitution of a  Municipal Committee for Desaiganj nominating certain persons as members of the Committee, appointing   two persons, respondents 3 and 4, as President and Vice-President of that Municipal Committee, and amending or altering the provisions of certain sections of the C. P. and Berar Municipalities Act, 1922, in its application to the Municipal Committee of Desaiganj.  Briefly  stated, the petitioner’s contention is that   the State Government had  no power under the notification first issued by it on 26-4-61 to appoint any person from among the appointed members  as President and Vice-President, that this power was expressly reserved in the appointed  members to elect office-bearers of the Municipal Committee, that the subsequent notifications of 11th July 1961 which  purported to substitute section 18 as originally amended,  was not a proper exercise  of the power under S. 9 of the Municipalities Act.  The State Government could not  therefore in exercise of the power alleged to be given by  virtue of the notification of 11th July 1961 which was styled as a Corringendum, appoint respondents 3 and 4 as President and Vice-President of the Municipal Committee  of Desaiganj.  They have raised fundamental objection to the action on the ground that S. 9 of the  C. P. and Berar Municipalities Act itself is ultra vires  the legislative power of the State Legislature of madhya Pradesh, that it has overstepped the limits of the delegation of the legislative power and that the powers granted to the State Government as the delegate of the Legislature  are far in excess of well-recognized limits of delegation.  The delegate, namely,. the State Government, has been empowered according to  the petitioner not only to withdraw the operation of certain provisions of the Municipalities Act , or modify certain provisions before application but also  to add to the provisions in respect of any of the matters mentioned in the provision which has been withdrawn  from its application to the Municipal Committee.  In short, the contention is that the amplitude of the power is so wide that the State Government is empowered to erect a new Municipal Code entirely inconsistent with  the policy of the parent Act and to make it applicable to any Municipal committee.  It is also urged  that there is no indication,  guidance, or standard in the section itself viz S. 9, or any other part of the Act, to find  out in what circumstances the State Government may exercise the powers given in S. 9.  Thus, the power is non-canalised, arbitrary and without any guidance from the Legislature itself.  It  is these contentions which we have to examine  in this petition.\n<\/p>\n
 (9)  In our opinion, if the last contention as to the vires of S. 9 is well founded, then it is not necessary to enter into a detailed examination of the action of the State Government in issuing various notifications of  26-4-61 of 11-7-61.\n<\/p>\n
 (10)  As already stated, we had suspended the Judgment and given a notice to the Advocate General.  That notice had been sent to  the Advocate General and the Advocate General has instructed the learned Additional Government Pleader to appear in this Court on his behalf.  We have heard the learned Government   Pleader further in support of the action and we now proceed to  discuss the merits of the case.\n<\/p>\n
 (11)  Section 9 of the C. P. & Berar Municipalities Act is as follows:\n<\/p>\n
 “If the circumstances of  any municipality are such that in the opinion of the Provincial Government, any  provision of this Act is unsuited thereto, the Provincial Government may by  notification-\n<\/p>\n
 (a)  Withdraw the operation of that provision from the municipality;\n<\/p>\n
 (b)  apply that provision to the municipality in a modified form to  be specified in such notification.\n<\/p>\n
 (c)  make any additional provision for the municipality in respect of the matter mentioned in the provision which has been withdrawn from, or applied in a modified form to, the municipality.”\n<\/p>\n
 (12)  It is undoubtedly true that  the Provincial Government has been empowered if the circumstances of any municipality are such as in the opinion of the Provincial Government require that any provision of this Act is unsuitable to it, that action  may be taken  under sub-clauses (a),(b) of S. 9  Clause (a) permits the State Government to withdraw  the operation  of any provision of the Act from that  municipal committee.  Clause (b) empowers the State Government   to apply that provision in a modified form.  On the other hand, Clause (c) permits the State Government to make any additional provisions for the municipal committee in respect of the matter mentioned in  the provision which has been withdrawn or  applied in a modified form to the municipal committees.  Thus each one of the  sub-clauses in their decending order  gives increasing  power to  the State Government  either to withdraw the application of any provision of the  Act or to modify any  provision of the Act or completely to  substitute a provision of the Act by a provision  made by them.  It was  not disputed before us by the learned Additional Government Pleader that the amplitude of  this power  may well sustain an action on behalf of the State Government in completely changing the structure of  a municipal body in  all vital matters connected with the constitution, functioning, powers and control of a municipal  authority.  The C. P. and Berar Municipalities Act is founded on a principle of elective franchise for constitution of the committees.  Originally, the franchise was  wide enough to permit the   general electorate to  elect a President by direct vote and also the elect members  by direct election from respective wards.  A certain amount of indirect franchise was permitted in the matter of selection of certain class of members such as  Harijans,  women  and others.  By a later amendment a change has been effected in this form of franchise.  In  the present form the President is elected not by the whole body of electorate of  the town  but by elected members.  On the other hand, there is no person  now capable of being selected as a member of the Municipal Committee by elected members.  Thus, the present policy of the legislature is that all  persons who may form a municipal committee either as member or as office-bearers such as President and Vice-President should enter only by one door, namely, that of election.  So the  elective mode of  constitution of the members and  office-bearers of the committee is one of the policies of the legislature.  The legislature has also  fixed the term of membership of the committee  and its office-bearers originally as three  years, but by subsequent notification it was fixed at five years after 1941.  There are certain safeguards provided in the Act as to the manner in which the bye-laws and statutory rules are to be framed and brought into force.  There is a well-defined procedure prescribed for imposing taxes,   for inviting objections to the proposed taxes, and for giving due publicity to all these measures which are likely to affect the life, property and  civic rights of the  citizens of the locality.  Rules can be framed only after  prior publication and they  are generally subject to objections being received and considered by the authorities.  So are the bye-laws.  So the whole pattern of municipal administration under system incorporated in the C.P. and Berar Municipalities Act is based on well-defined policies.  Section 9 permits the State Government to withdraw the application of any of these provisions of the Act from a particular municipal committee.  Thus instead of a municipal committee being constituted by election of members, the State Government may impose a municipal committee which may consist of members  appointed by it.  In fact,  in the instant case, this has been done by the State Government by adding an overriding and  non-obstante clause  as sub-clause (8) of S. 10 by which all  the provisions of  that section as   it originally stood in sub-clauses 2 to 7 have been in effect abrogated, giving place to appointed members in lieu of elected members.  Section 18 of the Act provides for election of a President by the elected members as normal mode.  In the instant case the State Government has altered the provisions of S. 18 to  such an extent that it has taken to itself  the power of appointing the office-bearers like the  President and Vice-President from among the members.  The rule-making power of the State Government is itself subject to previous publication of the rules.  In one case at least the  State Government has taken the power in the instant case to withdraw this requirement of  previous publication of a rule in connection with certain budgetary provisions.  These are only illustrations of the manner in which the power given under S. 9 of  the C. P. and Berar Municipalities Act  can be exercised by the State Government.  If S. 9 is intra vires, then  the State Government without being all  accused of any want of bona fides may well exercise the power in such a manner as to completely alter the structure  of a municipality for a particular town.  It may extend the  provisions of the Act so as to extend the terms of the office of the municipality for an unlimited period.  It may alter the procedure of imposition of taxes in such a manner as to deprive citizens of any right to object to such imposition.  It is not  to be suggested that the power will be exercised in a manner prejudicial to the interest of the people; it may  well be that  the power may be exercised in a benevolent manner  and in the best interests of the people concerned.  But that hardly is of any relevance when the question of ambit of the power is being discussed and its validity is  to be decided.  It is not answer to the charge to say that however arbitrary the poer may be, there is  an assurance that the repository of the power being State Government  it will always exercise that power in the best  interests of the people.   That may or may not happen.  We have no reason to think in the instant case  that what has been done by the State Government in respect of the Municipal Committee of Desaiganj was  from any motive other than the interests of the people concerned.  But what is to be found is whether the Legislature can delegate its function of legislation in creating as it were a parallel though subordinate legislature with the same amplitude of powers to legislate with  respect to the policy and also the manner in which the body to be constituted shall function.  In our opinion, the limits of subordinate legislation in the instant case have been overstepped and it is not possible to sustain the vires of section 9 of the C. P. and Berar Municipalities Act.\n<\/p>\n
 (13)  There is considerable guidance in the pronouncements of the highest Court in the country in testing the arguments of the petitioner.  The earliest case in   In re Delhi Laws Act, AIR 1951 S. C. 332 has now been accepted as laying down at least two propositions which had the backing of the majority of the opinions expressed by the Court in that case.  At page, 338  the learned Chief Justice observed as follows:\n<\/p>\n
   “Before considering these arguments in detail, I think it is seential to appreciate clearly what is conveyed by the word ‘delegation.’  That word is not used, either in discussions or even in some decisions of the courts, with the same meaning.  When a legislative body passes an Act it has exercised its legislative  function.  The essentials of such function are the determination of the legislative  policy and its formulation as a rule of conduct.  These essentials are the characteristics  of a legislature by itself.  It has nothing to do with the  principle of division of powers found  in the Constitution of United States of America.  Those essentials are preserved, when the legislature specifies the basic conclusions of fact, upon  ascertainment of which, from relevent data, by a designated administrative agency, it ordains that its statutory command is to be effective.  The legislature having thus made its laws, it is clear that every detail for working it out  and for carrying the enactments into operation and effect may be done by the legislature or may be left to another subordinate agency or  to some executive  officer.  While this also is sometimes described as  a delegation of legislative powers, in essence it is different from delegation of legislative power which means a determination of the legislative policy and formulation of the same as a rule of  conduct.”\n<\/p>\n
To  the same effect are the observations of Mr. Justice B. K. Mukherjea at page 400, which  are as follows;\n<\/p>\n
   “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.  It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the  frame work of that policy.”\n<\/p>\n
His Lordship quoted the following from an American decision in A.L.A. Schechter Poultry  Corpn. v. United State,  (1934) 295 US 495:\n<\/p>\n
   “So long as a policy is laid down and a standard established by statute no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the  making of  subordinate rules within  prescribed limits and the determination of facts to which the  legislation to apply.”\n<\/p>\n
 (14) In a subsequent decision of the Supreme Court in Harishankar Bagla v. State of Madhya Pradesh,  the<\/a>ir Lordships observed in paragraph 9 at page 468 to the following effect;\n<\/p>\n
 “It was stated by the majority  judgment in the ‘Constitution of India and Delhi Laws Act, 1912, etc., AIR 1951 SC 332, that  essential powers of legislation cannot be delegated.  In other words, the Legislature can  not delegate its function of laying down legislative policy  in respect of a measure and its formulation  as a rule of conduct.  The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or  the body in power to execute the law.  The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy  into a binding rule of conduct…”  In  the same year the Supreme Court had to consider the vires of another legislation in connection with municipal laws.  That was in the case of Rajnarain Singh v. Chairman Patna, Administration Committee,<\/a> .  It is worthwhile to remember that in that case an executive authority, namely, the Local Governments of Bihar and Orissa was empowered by the Legislature by an amendment effected by Act IV of 1928 to Act No. I of 1915 to do the following things:\n<\/p>\n
 (1)  To cancel or modify  any existing municipal laws in the Patna Administration area.\n<\/p>\n
 (2)  To extend to this area all or any of the sections of the Bihar and Orissa Municipal Act of 1922 subject to such restrictions and modifications as it considered fit.\n<\/p>\n
 (3)  To add  to the Patna Administration area other areas not already under municipal contract.  Purporting to  act in the exercise of these powers the Local Government on 25-4-31 repealed the existing laws in the Patna Administration Area and in their place introduced a new set of laws culled from Bihar and Orissa Act of 1922 with certain restrictions and modifications as they thought  fit.  Then in 1951 the Bihar State Government issued the notification of 23rd April 1951 which was the subject-matter of challenge  before the Supreme Court.  In paragraph 31 at page 574 their Lordships observed as follows with regard to the 1951 Delhi Laws Act:\n<\/p>\n
   “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.”\n<\/p>\n
Furtheron, applying these principles their Lordships observed at page 575 as follows:\n<\/p>\n
   “But even as the modification of the whole cannot be permitted to effect any essential change  in the Act of 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 decision, could be evaded by picking out  parts of the 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 Act regarded as a whole.  Subject 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 and applied to “Patna” provided that does not effect any essential change in the Act or alter its  policy.”\n<\/p>\n
Ultimately their Lordships held that the notification  dated 23-4-51 did  effect  a radical  change in the policy of the Act and therefore it  travelled beyond the authority which was given by section 3 of the  Bihar and Orissa Act was declared ultra vires.\n<\/p>\n
 (15)  The same question has been subject to debate before the Supreme Court in Hamdard Dawakhana v. Union of India,<\/a> .   In that case the impugned section  empowered the State Government to  make a  rule as to “any other disease or  condition which may be specified in the rules” with  regard to which no person was to take part in publication of any advertisement referring  to any drug in terms which suggested or calculated to  be used for any such disease.  The  contention was that there is no indication in the action as to what other disease or diseases were to be  specified in making the rule by the rule-making authority.  This was struck down as travelling  beyond the  permissible limits of delegated legislation inasmuch as  an uncontrolled and unguided power was vested in the rule-making  authority to bring within the mischief of the section any disease or  impose  any  conditions to  be specified by the rule-making authority.\n<\/p>\n
 (16)  The danger of permitting a delegate of the Legislature to exercise legislative power  has been emphasized in the following words by the Supreme Court in Vasanlal Maganbhal v. State of Bombay, :\n<\/p>\n
   “The Constitution confers a power and imposes a duty on the legislature to  make laws.  The  essential legislative function is the determination of the legislative policy and  its formulation as a rule of conduct.  Obviously it cannot abdicate its functions in favour  of another.  But in view of the multifarious activities  of a welfare State, it cannot presumably work out all the details to suit the  varying  aspects of a complex situation.  It must necessarily delegate the working out of details to this executive or any other agency.  But there is a danger inherent in such a process of delegation. An overburdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation.  It may not lay down any policy at all; it  may declare its policy in vague and general terms; it  may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without  reserving for itself  any control over subordinate legislation.  This self-effacement of legislative power in favour of another agency either in whole or  in part  is  beyond   the permissible limits of  delegation.  It is for  a Court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature exceeded such limits.  But the said liberal construction should not be carried by the Courts to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power on executive authorities.  It is the duty of  this Court to strike down without any hesitation any blanket power conferred on the executive by the legislature.”\n<\/p>\n
 (17)  It is in the light of these pronouncements that we have to consider whether the power that is given to  the State Government  under section 9 of the C. P. and Berar Municipalities Act oversteps the limits of permissible delegation.  The learned counsel for the State has invited out attention to another decision  of the Supreme Court in Union of India v. Bhanamal Gulzarimal Ltd., .  In that case fixation of maximum rates for iron and steel was challenged as permitting exercise of essentially legislative power  under clause 11-B of the Iron  and Steel (Control of Production and Distribution) Order.  Now  that order was itself passed under the  Essential Supplies (Temporary Powers) Act 1946.  The vires of the Act and the power to issue Orders under that Act have been upheld  by the Supreme Court in Harishankar Bagla’s case cited already .  What clause 11-B of the Iron and Steel Control Order permitted was fixation of maximum rate at which steel may be sold or price  may be  fixed.  Undoubtedly there is  a certain margin within  which  the prices have to be fixed,   and it is unthinkable that the Legislature can in advance indicate what the prices may  be in respect of a given commodity.  It all depends on supply position, transport facilities, the need for the article and manifold factors which are to be taken into consideration by the price-fixing authority from time to time.  Such a machinery having been created it was  not held possible to uphold the contention that the power to  fix prices given under clause 11-B of the Order was in any manner indicative of excessive delegation of legislative power.  We do not think that this decision is of any assistance to the respondents in this case.  Similar contentions were raised in the case of Banarasidas v. State of M. P.,  where power is given to the State Government to fix the rate of sales tax by amendment of Schedule.  That power has also been  upheld by the Supreme Court.\n<\/p>\n
 (18)  The history  of section 9 will also throw considerable light in showing how the amendment effected in section 9 in 1947 has overstepped the limits of permissible delegation.  Section 9 as it originally stood in its unamended form was as follows:\n<\/p>\n
 “9 (1).  If the circumstances of any municipality are such that, in the opinion of the Local Government, any of the provisions of  this Act are unsuited thereto, the Local Government may, by notification, except the municipality from the operation of those provisions, and thereupon  the said provisions shall not apply  to the municipality until  applied thereto by notification.\n<\/p>\n
 (2)  While such exception remains in force,  the Local Government may make  rules for the guidance of the committee and public officers in respect of the matters excepted from the operation of the said provisions.”\n<\/p>\n
Under the original section prior to its amendment the Local Government was empowered to except  a particular municipality from the operation of any of the provisions of the Act and thereupon on issue of such a notification the said provisions were not applied to the  municipality until they  were again applied by a fresh notification.  While such an exception was in force, the Local Government was given power to make rules for the guidance of different officers in respect of  operation of  the said provisions.  Now, this  power may well be considered within the limits of permissible delegation.  It was merely a power to withdraw the application of  any particular provision to a  municipal committee.  What the amendment has  done is not only to permit withdrawal of the application of a provision to a particular committee but to substitute  it by  an altogether different provision and there is no guidance in the section itself or anywhere else in the Act as to what that provision should  be.  There is a further infirmity in the  wide amplitude in which the power is given.  It does not indicate as to the circumstances in which a particular municipal  committee may be considered unsuitable for the normal provisions of the Act being made applicable to it.  There is hardly any indication in the section as to what will be the circumstances justifying the State Government to exercise the power under section 9.  We asked  this question to the learned counsel appearing for the State because no mention was made as to the circumstances in which this power may be used in the return.  Not only the notification itself did not specify or indicate any such circumstances but even  the return was utterly silent on this  point.  We should have expected that when the vires of the section and the exercise  of the power under the section were challenged by the petitioner, the State Government should have come forward to indicate the circumstances  showing unsuitability of this particular  municipality.  For this   purpose reference was made to the statement made on the floor of the Legislative Assembly by the Honourable Minister.  That  statement is made later and the action was taken much earlier.  But  even that statement does not indicate what were the peculiar festures of this area as to deprive the Municipal Committee of Desiganj of  the normal operation of the Municipal Act.  For instance, the Desaiganj are now comprised in the Municipality originally had  three Gram Panchayats, Gram Panchayats are elected bodies for local government at that leval.  Elective  franchise was not unknown to the  citizens of this  area.   There is no reason  why simply because the  form of local  government was changed from Gram Panchayat to a municipality  the people should have been deprived of their franchise to  elect their representatives  to the body.  A faint  reference was made to the possibilities of financial difficulties of this area in being converted into an urban municipal  committee.  We have no material on record from which any such inference could be drawn, and even assuming that there was  any such difficulty, ample provision could have been made for retaining the effective control of Government over the budgetary provision and the power of expenditure of the newly constituted  committee.  It is difficult to see why for that purpose it was necessary for the Government to  take  upon itself to appoint  members of the committee and also its  office-bearers.  It was  urged that this was a temporary measure and there was no lack of bona fides in the exercise of the power.  In our opinion, these considerations are hardly of any relevance.  If the section is capable of being so construed as  to invest the State Government with the necessary power of formulating a new  code for  municipal committees in place of  the Municipal Act,. that in effect amounts to a complete abdication of power by the Legislature.  The Legislature cannot permit its delegate to formulate the policy of local self-government in the State in the use of making provision for any municipalities.  That  policy must be found in the statute itself and it cannot be altered  by anybody except  by the Legislature   itself.  It was alleged that if this interpretation is to be accepted, it will be difficult for  new areas to be brought under municipal administration.  We fail to see why the Legislature cannot make adequate provision for underdeveloped areas to be brought under operation of urban administration of local self-government.  Actually, in these areas there was local authority known as the Notified Area Committee.  They exercised only certain of the functions of full-fledged municipal committee.  The  Act itself could be so amended as to make provision for gradual development of local  self-government in an area, but that decision must be of the Legislature and not of any other delegate of the Legislature.  We therefore hold that the power that is  given to the State Government under section 9 of the C. P. and Berar Municipalities Act is unguided and  uncanalised power.  That power oversteps  the limits of permissible delegation of legislative authority, and therefore the whole of section 9 which makes  it possible for the State Government to formulate an altogether different code for constitution, functioning and powers of the  municipal authority, is beyond the scope of the Act and is therefore ultra vires of the powers of the Legislature.  We therefore  declare section 9 of the Act as ultra vires.\n<\/p>\n
 (19)  With this decision it is not necessary  to adjudicate on the earlier contentions raised by the petitioner as to the propriety of the powers  exercised in  issuing the various  notifications.  It may however be observed that  even assuming that there is a power to  withdraw the provisions of certain sections or to  amend certain sections in exercise  of the  powers under section 9 in respect of a  particular municipal committee,  the  notification itself must show the circumstances in which  the power is required to be exercised.  It is  conceded that the notification should be able to indicate the necessity of exercise of this power.  This  has not been done even in the  subsequent notifications of  11th July 1961.  They are issued  merely as corrigendum.  In fact, they are not merely  corrections; they  completely alter the scheme of the  earlier notifications altogether.  Whereas in the earlier notifications the method of choosing the office-bearers like President and Vice-President was by election  of the members, it was subsequently altered to  their being appointed by the State Government which is not a  mere corrigendum.  This is a complete change in the policy in the matter of  office-bearers coming into office as President and Vice-President.  We therefore hold that the subsequent notification of  11th July 1961 was also not issued in proper exercise of the powers conferred by section 9.\n<\/p>\n
 (20)  Thus, the result is that all the subsequent notifications issued after the notification  constituting the Desaiganj Municipal  Committee, are ultra vires and are  of no effect.  The result is that  the petition is allowed  but  in  the  circumstances there will be no  order as to costs.\n<\/p>\n
(21)  Petition allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Sundarabai vs State Of Maharashtra And Ors. on 16 August, 1962 Equivalent citations: AIR 1967 Bom 203, (1963) 65 BOMLR 821, ILR 1964 Bom 1 Author: Abhyankar Bench: Abhyankar, Palekar JUDGMENT Abhyankar, J. (1) The State of Maharashtra issued a preliminary notification on 29-8-1959 under S. 4 of the C. P. and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-196593","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSundarabai vs State Of Maharashtra And Ors. on 16 August, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sundarabai-vs-state-of-maharashtra-and-ors-on-16-august-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sundarabai vs State Of Maharashtra And Ors. on 16 August, 1962 - 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