{"id":6823,"date":"1978-09-19T00:00:00","date_gmt":"1978-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/avinder-singh-etc-vs-state-of-punjab-anr-etc-on-19-september-1978"},"modified":"2017-01-13T06:16:48","modified_gmt":"2017-01-13T00:46:48","slug":"avinder-singh-etc-vs-state-of-punjab-anr-etc-on-19-september-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/avinder-singh-etc-vs-state-of-punjab-anr-etc-on-19-september-1978","title":{"rendered":"Avinder Singh Etc vs State Of Punjab & Anr. Etc on 19 September, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Avinder Singh Etc vs State Of Punjab & Anr. Etc on 19 September, 1978<\/div>\n
Equivalent citations: 1979 AIR 321, \t\t 1979 SCR (1) 845<\/div>\n
Author: V Krishnaiyer<\/div>\n
Bench: Krishnaiyer, V.R.<\/div>\n
           PETITIONER:\nAVINDER SINGH ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF PUNJAB & ANR. ETC.\n\nDATE OF JUDGMENT19\/09\/1978\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nDESAI, D.A.\n\nCITATION:\n 1979 AIR  321\t\t  1979 SCR  (1) 845\n 1979 SCC  (1) 137\n CITATOR INFO :\n R\t    1979 SC1550\t (13)\n R\t    1979 SC1803\t (12)\n RF\t    1980 SC 738\t (9)\n F\t    1983 SC 762\t (19)\n R\t    1991 SC2096\t (30)\n\n\nACT:\n     Constitution  of\tIndia-Articles\t 14,   265-Vice\t  of\nexcessive  delegation-Absence\tof  guidelines-What  can  be\ndelegated-Imposing   flat   rate   of\ttaxation-Choice\t  of\nclassification in taxing statute.\n     Punjab  Municipalities   Act,   1976-Sec.\t 90   Punjab\nMunicipal Act,\t1911-Sec. 62A-Double  taxation if prohibited\nby Art. 265.\n\n\n\nHEADNOTE:\n     The  Municipalities  of  Punjab  are  governed  by\t two\nenactments. The\t numerous little  ones are  statutory bodies\ncreated and controlled by the Punjab Municipal Act, 1911 and\nfew large  ones by  the Punjab\tMunicipal  Corporation\tAct,\n1976.  For   the  purpose   of\tthe  present  petitions\t the\nprovisions run\ton identical  terms. The  State of Punjab in\nApril, 1977  required the  various municipal  bodies in\t the\nState to  impose tax  on the  sale of  Indian  made  foreign\nliquor @  Re. 1\/- per bottle w.e.f. 20-5-1977. The Municipal\nauthorities having  failed to  take action  pursuant to\t the\ndirective the State of Punjab directly issued a notification\nunder sec.  90(5) of  the Punjab  Municipal Corporation Act,\n1976 and similar provision of the Municipal Act, 1911.\n     The petitioner  challenged the  constitutional validity\nof the said statutes and levy on the following grounds:\n     1. Section 90(2)(b) of the Act suffers from the vice of\nexcessive delegation or legislative abdication.\n     2. There are no guidelines for the exercise of the wide\nfiscal power  of the Corporation or Government which make it\ntoo unreasonable  to be\t salvaged  by  Art.  19(5)  and\t too\narbitrary to be equal under Art. 14.\n     3. The  order  imposing  the  tax\titself\tis  vitiated\nbecause:\n\t  (a)\tIt seeks  to impose the tax which is already\n\t       imposed and,  therefore, violates  section 90\n\t       (4);\n\t  (b)  There is double taxation;\n\t  (c)  It levies too heavy taxation;\n\t  (d)  Picking out from the broad spectrum of luxury\n\t       goods or\t intoxicants the Indian made foreign\n\t       liquor amounts to discrimination;\n\t  (e)  No opportunity of being heard was given;\n\t  (f)  Unequals\t are   being  treated\tequally\t  by\n\t       imposing Re.  1\/- per  bottle irrespective of\n\t       the type of liquor taxed, price of the liquor\n\t       and alcoholic content.\nDismissing the appeal.\n^\n     HELD:  (1)\t  There\t is  nothing  in  Art.\t265  of\t the\nConstitution prohibiting double taxation. [850 D]\n846\n     Cantonment Board  Poona v. Western India Theatres Ltd.,\nAIR 1954 Bom. 261 approved.\n\t  (b)  The plea that flat rate of Re. 1\/- per bottle\n\t       be it on brandy or other stronger beverage or\n\t       be it Rs. 50\/- or Rs. 500\/- per bottle cannot\n\t       be  seriously   pressed.\t In   the  field  of\n\t       taxation\t many\tcomplex\t factors  enter\t the\n\t       fixation and flexibility is necessary for the\n\t       taxing authority. [850E-F]\n     Moopil Nair (K.T.) v. State of Kerala, [1961] 3 SCR 77;\nEast India Tobacco Co. v. State of A.P., [1963] 1 SCR 404 at\n406; A. Hajee Abdul Shakoor & Co. v. State of Madras.<\/a> [1964]\n8 SCR 217 at 230 referred to.\n     (2) If  the Municipal  body proposed to impose a tax it\nis required  to offer  an opportunity  to the  residents  of\narea. No  such procedural  fetter is  to be found under sec.\n90(5) if  the levy is imposed by the State Government. It is\nimpossible for\tthe Court to imply invitation of objections.\n'No taxation  without representation' is not applicable to a\nGovernment controlled  by an  elected legislature exercising\nits power of taxation. [852B, C, D]\n     (3) Sec.  90(4) talks  of tax  not already imposed. The\nSales Tax  imposed by the state legislature under the Punjab\nGeneral Sales  Tax Act\t1948 is\t no bar to the present levy.\nSection 90  deals with\tthe  levy  of  taxes  for  Municipal\nCorporation. The injunction is confined to repetition of the\ntaxes which  the Municipality  has already  imposed. If\t the\nCorporation has\t not already imposed the tax. the embargo is\nabsent. It  is of  no moment that some other body, including\nthe State  Legislature has  already entered  the field.\t The\nquestion is has the Municipal Committee or Corporation under\nthis Act already exacted a similar tax ? [852F, H, 853BC]\n     (4) The Founding Document of the nation has created the\nthree  great   instrumentalities  and  entrusted  them\twith\ncertain basic  powers-legislative, judicative and executive.\nAbdication   of\t   these    powers    by    the\t   concerned\ninstrumentalities, amounts  to betrayal\t of the constitution\nand  it\t is  intolerable  in  law.  The\t legislature  cannot\ndelegate   the\t  essential   legislative   functions.\t The\nlegislature  is\t  responsible  to   the\t  people   and\t its\nrepresentative, the  delegate may  not be  and this  is\t why\nexcessive   delegation\t  have\t been\t frowned   upon\t  by\nconstitutional law.  However,  the  complexities  of  modern\nadministration are  so bafflingly intricate and bristle with\ndetails, urgencies difficulties and the need for flexibility\nis such\t that our  legislature may not get off to a start if\nthey must  directly and\t comprehensively handle\t legislative\nbusiness  in  all  their  plenitude  and  particularisation.\nDelegation of  some part  of  legislative  power  becomes  a\ncompulsive  necessity\tfor  viability.\t  Of  course,  every\ndelegate is  subject to\t the authority\tand control  of\t the\nprincipal and  exercise of  delegated power  can  always  be\ndirected or  cancelled by  the Principal. Therefore, even if\nthere be  delegation, parliamentary  control over  delegated\nlegislation   should   be   a\tliving\t continuity   as   a\nconstitutional necessity. [853GH, 854A, B, C, D, E]\n     Devi Das  Gopal Krishnan  & Ors.  v. State\t of Punjab &\nOrs., [1967]  3 SCR  557 at  565; P.  N. Kaushal  etc. v. v.\nUnion of  India & Ors. [1979] 1 SCR 122; Corp. of Calcutta &\nAnr. v. Liberty Cinema,<\/a> [1963] 2 SCR 477 referred to.\n     The taxes levied under the Act can be utilised only for\nthe purpose  of the  Act. There is a clear purpose contained\nin the\tprovisions about  the purpose  and limit of the tax.\nWhat is\t needed for  the  purpose  of  the  Act\t by  way  of\nfinancial resources may be levied by the Corporation. Beyond\nthat not. Moreover the\n847\nitems on which taxes may be imposed are also specified. Thus\nthe legislature\t has fixed  the\t purpose  of  the  taxation,\nobjects of the taxation and limits of the taxation. [856A-B]\n     It\t is  too  late\tin  the\t day  to  contend  that\t the\njurisprudence of  delegation of\t legislative power  does not\nsanction parting with the power to fix the rate of taxation,\ngiven indication  of the  legislative policy with sufficient\nclarity. [860 B]\n     When  the\t Government  is\t  imposing  taxes   for\t the\nMunicipality the  Government is\t bound to know what ought to\nhave been  done by the Municipality. The whole scheme of the\nstatute shows  that Government has an important role to play\nin the\trunning of the municipalities. The financial control\nover the corporation is with the State Government. [865E]\n     As between\t the two interpretations that which sustains\nthe validity of law must be preferred. [864E]\n     M. K. Papiah & Sons v. The Excise Commr. & Anr., [1975]\n3 SCR  607; Sita  Ram Bishambhar  Dayal v.  State  of  U.P.,<\/a>\n[1972] 2 SCR 141 referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION:  Writ Petitions Nos. 4038, 4147,
\n4148, 4149,  4150, 4202, 4204, 4207, 4213, 4215, 4222, 4224,
\n4227, 4232,  4236, 4246, 4249, 4251, 4259, 4311, 4343 & 4347
\nof 1978.\n<\/p>\n
     (Under Article 32 of the Constitution).\n<\/p>\n
     V. M.  Tarkunde, P.  H. Parekh,  C. B.  Singh and Mukul
\nMudgar for the Petitioners in W.P. Nos. 4038 and 4244\/78.\n<\/p>\n
     Yogeshwar Prasad,\tMrs. Rani  Chhabra and\tMiss M. Bali
\nfor the\t Petitioners in\t W.P. Nos. 4147-4150, 4207, 4232 and
\n4343\/78.\n<\/p>\n
     B. R.  Kapur and S. K. Sabharwal for the Petitioners in
\nW.P. Nos. 4213, 4215, 4246, 4249, 4311, 4224 and 4227\/78.\n<\/p>\n
     O. P.  Sharma for\tthe Petitioners\t in W.P.  Nos. 4222,
\n4259\/78.\n<\/p>\n
     Pramod Swarup for the Petitioner in W.P. 4347\/78.
\n     Shreepal Singh for the Petitioner in W.P. 4236\/78.
\n     M. P. Jha for the Petitioner in W.P. 4251\/78.
\n     M. C.  Bhandare (In W.P. 4204 and 4227\/78 only) Mrs. S.
\nBhandare, A.  N. Karkhanis  and Miss Malini Poduval for R. 3
\n(In W.P.  4204, 4227\/78) and for R. 3 in 4215 and for R. 3-4
\nin 4249\/78.\n<\/p>\n
     G. L.  Sanghi (In W.P. 4038\/78 only) S. K. Mehta, K. R.
\nNagaraja, P.  N. Puri  and G.  Lal for\tMunicipality (rr) in
\nW.P. 4038, 4207, 4215, 4249, 4227.\n<\/p>\n
     Hardev Singh and R. S. Sodhi for the State of Punjab in
\n(W.P. 4038\/78).\n<\/p>\n
     Bishamber Lal  for\t the  State  of\t Punjab\t in  (W.  P.
\n4147\/78).\n<\/p>\n
848<\/span><\/p>\n
     Naunit Lal\t for Municipal\tCommittee (R.6) in W.P. 4249
\nand for r. 4 in 4227\/78.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     KRISHNA IYER,  J.-This heavy  bunch of  writ  petitions
\nimpeaching the\tvalidity of a tax on foreign liquor raises a
\nfew familiar  legal riddles.  A rupee per bottle sold within
\nevery municipal\t town or  city is  the impugned levy, meant,
\naccording to  the  Punjab  Government,\tto  serve  the\ttwin
\npurposes of  replenishing the  resources of municipal bodies
\nreduced by house tax exemptions and of weaning drinkers from
\noverly consuming foreign liquor as a prohibitionist gesture.
\nTo pick\t the pocket of every spirituous bibber of the higher
\nbrackets by a tiny tax may be but a feeble homage to Art. 47
\nof the\tConstitution, and  to finance  welfare projects with
\nthis tainted tax may be queer Gandhiana. The will to enforce
\n‘dry’ sobriety\tin society  and\t to  abolish  massive  human
\nsqualler by  fleecing the fat few, is made of sterner stuff,
\nmaybe.\tBut  matters  of  means\t and  ends,  of\t police\t and
\nmorality, are  largely for  the legislature  and validity is
\nthe province  of the court. We let slip the observation only
\nbecause, from  a certain  angle, these dual grounds make odd
\ncompanions and\tadd to\tthe credibility\t gap,  although\t our
\nfocus is solely on the legality of the levy.\n<\/p>\n
     It is  better to  begin with the story of the tax under
\nchallenge. The\t petitioners  are all  licensees to trade in
\nforeign liquor\tincluding Indian  made foreign\tliquor. They
\nare either  wholesalers or retailers and pay excise duty and
\nother fees  and taxes  including sales tax under the general
\nsales tax  law which imposes a levy of 10 per cent, on sales
\nof foreign  liquor. There  are also  octroi levies of 10 per
\ncent, and educational tax of 2 per cent, and these add up to
\na considerable\tburden; but  the commodity  taxed is foreign
\nliquor, Indian made or other, whose consumer usually belongs
\nto the well to do sectors.\n<\/p>\n
     The  municipalities  of  Punjab  are  governed  by\t two
\nenactments. The\t numerous little  ones are  statutory bodies
\ncreated and controlled by the Punjab Municipal Act, 1911 and
\nthe few\t large ones by the Punjab Municipal Corporation Act,
\n1976 (the  Act, for  brevity, hereafter).  For our purposes,
\nthe provisions run on identical terms and so we will take up
\nthe latter  statute which  compresses  into  one  section  a
\nplurality of  sections in the former, and set out the common
\nscheme to  study the  critical issues raised. Arguments have
\nbeen addressed only on this basis.\n<\/p>\n
     The immediate  facts which have launched the litigative
\nrocket need  to be  narrated now  to get  a hang of the core
\nquestions in their correct perspective. The State of Punjab,
\nin April 1977, under its statutory
\n849<\/span>
\npower [s.  90(4)] required  the various\t municipal bodies in
\nthe State  to impose  a tax  on the  sale et  al, of foreign
\nliquor at  the rate  of Re.  1\/- per bottle with effect from
\nMay 20,\t 1977. The  municipal authorities having tarried too
\nlong or\t totally failed\t to take  action  pursuant  to\tthis
\ndirective, the\tState directly\tentered the fiscal arena and
\nissued a  Notification under  s. 90(5)\tdated May  31, 1977,
\nwhich reads thus:\n<\/p>\n
\t  “Whereas the\tGovernment of Punjab, in exercise of
\n     the powers\t conferred by  sub-section (4) of section 90
\n     of the  Punjab Municipal  Corporation Act, 1063-A-PSLG-
\n     77\/12170, dated  11th  April,  1977,  required  of\t the
\n     Municipal Corporation  of Ludhiana\t in Punjab to impose
\n     tax on  the sale of “Indian made Foreign Liquor” at the
\n     rate of rupee one per bottle, by the 20th May, 1977.<\/p>\n
\t  2.  And  Whereas,  the  Municipal  Corporation  of
\n     Ludhiana has failed to carry out the aforesaid order of
\n     the Punjab Government within the stipulated period.\n<\/p><\/blockquote>\n
\t  3. Now,  therefore,  in  exercise  of\t the  powers
\n     conferred by  sub-section (5)  of\tsection\t 90  of\t the
\n     Punjab Municipal  Corporation Act,\t 1976, the President
\n     of India  is pleased  to impose\/modify  the tax  on the
\n     sale  of\t“Indian\t made  Foreign\tLiquor”\t within\t the
\n     Municipal Corporation  of Ludhiana at the rate of rupee
\n     one per  bottle. The  tax shall  come into\t force\twith
\n     effect from 1st June, 1977.\n<\/p><\/blockquote>\n
L.S. BINDRA
\n\t\t\t     Joint Secretary to Govt. Punjab
\n\t\t\t\tLocal Government Department”\n<\/p>\n
     This notification,\t issued under  s. 90(5) read with s.
\n90(2)(b) of  the Act,  was  later  modified  marginally\t but
\nsurvives   substantially.    The   petitioners\t (licensees)
\nchallenge its  vires  both  as\tcontrary  to  the  statutory
\nprovision (s.  90) and as violative of the Constitution. The
\ntriple shapes of the fatal constitutional pathology are that\n<\/p>\n
(a) s.\t90 (2)(b)  of the  Act\tsuffers\t from  the  vice  of
\nexcessive delegation  or legislative  abdication; (b)  there
\nare no\tguidelines for\tthe exercise of the vagariously wide
\nfiscal power  of the corporation or Government which make it
\ntoo unreasonable  to be\t salvaged  by  Art.  19(5)  and\t too
\narbitrary to  be ‘equal’  under Art.  14; and  (c) the order
\nitself is  vitiated by\tmultiple infirmities.  The principal
\ninvalidatory charge,  based on\tthe Act,  is that  s.  90(4)
\ninterdicts any\ttax ‘already imposed’. The present tax is on
\nsales and there is, under the general sales tax law, already
\na like\tlevy on sales of foreign liquor in the State, and so
\nthe second  fiscal venture  is beyond Government’s power. We
\nhave to consider these grounds of attack on the notification
\nwhich are the emphatic submissions of
\n850<\/span>
\nShri  Tarkunde\t who  led  the\targuments.  There  are\tmore
\nsubsidiary submissions\turged by  other counsel\t on a  lower
\nkey, though,  but we  have to  deal with  them\ttoo  in\t due
\ncourse. Briefly,  they are  (a)\t that  in  picking  out\t for
\ntaxation,  from\t the  broad  spectrum  of  luxury  goods  or
\nintoxicants, foreign  liquor alone,  discrimination has been
\npractised,  (b)\t that  even  assuming  that  Government\t can
\nexercise the  power of\tthe municipal body, it may not do so
\nwithout adhering  to the  procedural fairness implied in the
\nExplanation to\ts. 90(2)  applicable to municipal bodies and\n<\/p>\n
(c) that  unequals are being treated equally because the tax
\nof  Re.\t 1\/-  bottle  at  a  flat  rate\t disregards  germane
\nconsiderations like the price of the liquor or the degree of
\nalcoholic content. A feeble plea that the tax is bad because
\nof the\tvice of\t double taxation and is unreasonable because
\nthere are  heavy prior levies was also voiced. Some of these
\ncontentions  hardly   merit  consideration,  but  have\tbeen
\nmentioned out  of courtesy  to counsel.\t The last  one,\t for
\ninstance, deserves  the least attention. There is nothing in
\nArt. 265 of the Constitution from which one can spin out the
\nconstitutional vice  called double  taxation. (Bad economics
\nmay be\tgood law  and vice  versa). Dealing  with a somewhat
\nsimilar argument, the Bombay High Court gave short shrift to
\nit  in\t Western   India   Theatres(1).\t  Some\t undeserving
\ncontentions die\t hard, rather  survive after death. The only
\nepitaph we  may inscribe  is: Rest in peace and don’t be re-
\nborn ! If on the same subject-matter the legislature chooses
\nto levy\t tax twice  over there\tis no inherent invalidity in
\nthe fiscal adventure save where other prohibitions exist.\n<\/p>\n
     Likewise, the  plea that  a flat  rate of\tRe. 1\/-\t per
\nbottle, be it brandy or other stronger beverage or be it Rs.
\n50\/- or\t Rs. 500\/-  per bottle, cannot be seriously pressed.
\nIn the\tfield of  taxation many\t complex factors  enter\t the
\nfixation  and\tflexibility  is\t necessary  for\t the  taxing
\nauthority to make a reasonably good job of it. Moopil Nair’s
\ncase(2) does  not discredit as unconstitutional anathema all
\nflat rates  of taxation.  Maybe, in marginal cases where the
\nvirtual impact\tof irrationally\t uniform impost\t on the same
\nsubject\t is   glaringly\t discriminatory,  expropriatory\t and
\nbeyond legislative  competence, different considerations may
\narise; but  to condemn\tinto invalidity\t a tax because it is
\nlevied at  a conveniently  flat rate  having regard  to\t the
\ncommodity or  service which  has a  high range of prices and
\nthe minimal  effect on\tthe overall price, its easy means of
\ncollection and a variety of other pragmatic variables, is an
\nabsurdity,  especially\t because  in  fiscal  matters  large
\nliberality must\t be extended to the Government having regard
\nto the plurality of criteria
\n851<\/span>
\nwhich have  to go into the fiscal success of the measure. Of
\ncourse, despite this forensic generosity, if there is patent
\ndiscrimination in  the sense  of treating  dissimilar things
\nsimilarly or  vice-versa, the  court may  treat the  tax  as
\nsuspect and  scrutinise\t its  vires  more  closely.  In\t the
\npresent case, intoxicating liquids falling in the well-known
\ncategory of  foreign liquors  form  one\t class\tand  a\tflat
\nminimal rate  of Re.  1\/- per  bottle has  no constitutional
\nstigma\tof   inequality.  It  is  so  easy  to\tconceive  of
\ninnumerable taxes  imposed  in\tthis  manner  in  the  daily
\ngovernance   of\t  the\tcountry\t  that\t illustrations\t are
\nunnecessary. As\t excisable articles  go, foreign liquor is a
\ndistinct category and absence of micro-classification within
\nthe broad genus does not attract the argument of inequality.
\nLikewise, picking  and choosing\t within limits is inevitable
\nin taxation.  The correct law is found in East India Tobacco
\nCo.(1)
\n     “It is not in dispute that taxation laws must also pass
\n     the test of Art 14. That has been laid down recently by
\n     this Court\t in Moopil  Nair v. The State of Kerala. But
\n     in deciding whether a taxation law is discriminatory or
\n     not it  is necessary to bear in mind that the State has
\n     a wide  discretion in  selecting the persons or objects
\n     it will  tax, and\tthat a statute is not open to attack
\n     on the ground that it taxes some persons or objects and
\n     not others.  It is\t only when  within the\trange of its
\n     selection, the  law operates unequally, and that cannot
\n     be justified  on the basis of any valid classification,
\n     that it  would be\tviolative of  Art. 14. The following
\n     statement of  the law in Willis on “Constitutional Law”
\n     page 587,\twould correctly\t represent the position with
\n     reference to taxing statutes under our Constitution:-
\n\t  “A State  does not have to tax everything in order
\n     to tax  something. It  is allowed\tto pick\t and  choose
\n     districts, objects, persons, methods and even rates for
\n     taxation if  it does  so reasonably……..The  Supreme
\n     Court has\tbeen practical and has permitted a very wide
\n     latitude in classification for taxation.”
\n(See also  Abdul Shakoor  & Co. case)(2). The foreign liquor
\nlevy does not fail on this score.\n<\/p>\n
     Shri Yogeshwar Prasad urged that s. 90(2) obligated the
\nmunicipal body\tto offer  an opportunity to the residents of
\nthe city to file objections to the tax proposed and consider
\nthem before finalising
\n852<\/span>
\nthe impost.  This fair procedure must attach to the exercise
\nof the\tpower even  under s.  90(5); and  since that has not
\nbeen done  the impugned\t notification must fail. It is clear
\nfrom s.\t 90  that  the\tscheme\tis  that  if  the  municipal
\ncorporation wishes to impose a tax under s. 90(2) it must go
\nthrough the  due process indicated in the Proviso and secure
\nGovernment’s approval.\tBut if Government is to exercise its
\npower under  s. 90(5)  no such procedural fetter is found in
\nthe Section.  Maybe, that  power is different from procedure
\nfor its\t exercise; but\tunless the  statute insists,  it  is
\nimpossible for\tthe court  to imply invitation of objections
\nand consideration  thereof  from  the  residents.  For\tthis
\nsimple reason,\tthere is no merit in the submission. Whether
\nthe failure  to hear before fixing a tax has a lethal effect
\nupon the  fiscal power of the Government under s. 90(5) also
\nis of  little moment although urged by the same counsel. May
\nbe, it is desirable that the State acquaints itself with the
\nactual sentiments  of the  denizens of the local area before
\nimposing tax  on  them.\t But  it  is  not  inherent  in\t the
\nconstitutional requirements  for the exercise of the State’s
\npower of  taxation that\t objections should be called for and
\nconsidered. ‘No taxation without representation’ is a slogan
\nwith a different dimension and has nothing to do with a levy
\nby  a\tgovernment  controlled\tby  an\telected\t legislature
\nexercising its power of taxation. We are unable to accede to
\nthe contention\tthat representations  from the residents not
\nhaving been invited the taxation notification is bad in law.
\nWhat is wholesome is different from what is imperative.\n<\/p>\n
     Indeed, we\t are  left  with  the  two  major  arguments
\naddressed by  Shri Tarkunde  and echoed or endorsed by other
\ncounsel. Even  here, we\t may dispose of the submission based
\non the\twording in s. 90(4), namely, that taxing power under
\nsection can  be exercised  in respect of a particular impost
\nonly if that species of tax is “not already imposed”.\n<\/p>\n
     The power under s. 90(4) is permissible only if the tax
\nis new and not already imposed. The petitioner’s argument is
\nthat the  tax is  on sales and is clearly a sales tax. There
\nis already  a sales  tax on foreign liquor at the rate of 10
\nper cent,  under the  Punjab General Sales Tax Act, 1948. So
\nthe present  rupee tax\tis a  second round  in breach of the
\nforbiddance in\ts. 90(4).  Simple enough,  if the expression
\n‘not already  imposed’ in  s. 90(4)  is a ban on further tax
\nwhatever the  statute; but  if\tthe  taboo  is\tnot  on\t the
\ntopology of  the tax but limited to the specific statute the
\ncontention is  specious. And  it takes\tlittle reflection to
\nhold the  latter to  correct  view.  We\t must  remember\t the
\nstatutory setting  and the placement of the provision. S. 90
\noccurs in Chapter VIII headed ‘Taxation’. That Section prim-\n<\/p>\n
853<\/span><\/p>\n
arily empowers\tmunicipal corporations\tto  levy  taxes.  S.
\n90(1) specifies\t a number  of items  many of which are taxed
\nalso at\t State level,  e.g. lands,  vehicles. S. 90(2) is so
\nwidely worded  that many  taxes covered\t by it would already
\nhave been occupied field at the State or even Central level.
\nThe municipal  body may\t not have any index of taxes already
\nimposed by  other bodies and they are many. S. 90 would then
\nbe a  precarious power,\t often an  exercise in\tfutility and
\nfrequently a litigative trap. No. That is not the meaning of
\nthe  prohibition   `not\t already  imposed’.  The  Government
\nexercises the  power of\t the corporation  under s. 90(5) and
\ncannot enter  what is  forbidden ground\t for the latter. And
\nwhat is\t forbidden is  that the\t municipal  body  shall\t not
\nrepeat the  same tax,  if it  has imposed  that tax  earlier
\nunder that  Act. The  injunction is plain and is confined to
\nrepetition of those taxes which the municipality has already
\nimposed. If  the Corporation has not already imposed the tax
\nproposed, the  embargo is  absent. It  is of  no moment that
\nsome other body, including the State Legislature has already
\nentered the  field. The\t question is  :\t has  the  municipal
\ncommittee or  corporation, under this Act, already exacted a
\nsimilar tax?  If it  has, the  second exercise\tis anathema.
\nNobody has  a case  that the  corporation has  earlier taxed
\nforeign liquor under this Act. Therefore, the submission has
\nno substance and we reject it.\n<\/p>\n
     The sole  surviving ground\t of invalidation  pressed by
\nthe petitioners\t which deserves\t serious examination is what
\nwe have outlined right at the outset, viz., that on the face
\nof   s.\t  90(2),   (3),\t  (4)\tand   (5)   read   together,
\nunconstitutionality is writ large, in the sense of naked and
\nuncanalised power  with every essential legislative function
\nsurrendered to the humour and hubris of the State Executive.\n<\/p>\n
     If this  charge be true the consequence is in no doubt.
\nThe  vice   of\tunreasonableness   and\t arbitrariness\t are
\nmanifestations of  the same  vice as has been pointed out in
\nP. N. Kaushal etc.(1).\n<\/p>\n
     An examination  of excessive  delegation of legislative
\npower takes us to the scheme of the Act and insight into the
\ndynamics of  municipal administration.\tCertain fundamentals
\nmust be\t remembered in this context and then the text of the
\nprovision understood  in the constitutional perspective. The
\nFounding Document  of the nation has created the three great
\ninstrumentalities and  entrusted  them\twith  certain  basic
\npowers-legislative, judicative\tand executive. Abdication of
\nthese powers  by  the  concerned  instrumentalities,  it  is
\naxiomatic, amounts  to betrayal\t of the\t Constitution itself
\nand  it\t  is  intolerable   in\tlaw.  This  means  that\t the
\nlegislature cannot self-efface its
\n854<\/span>
\npersonality and\t make over,  in terms plenary, the essential
\nlegislative functions.\tThe legislature\t is responsible\t and
\nresponsive  to\tthe  people  and  its  representatives,\t the
\ndelegate may not be and that is why excessive delegation and
\nlegislative  hara   kiri   have\t  been\t frowned   upon\t  by
\nconstitutional law.  This is  a trite  proposition  but\t the
\ncomplexities of\t modern\t administration\t are  so  bafflingly
\nintricate and  bristle with details, urgencies, difficulties
\nand need  for flexibility  that our massive legislatures may
\nnot  get   off\tto   a\tstart  if  they\t must  directly\t and
\ncomprehensively handle\tlegislative business  in  all  their
\nplenitude, proliferation  and particularisation.  Delegation
\nof some\t part of  legislative  power  becomes  a  compulsive
\nnecessity for viability. If the 500-odd parliamentarians are
\nto focus  on every  minuscule of  legislative detail leaving
\nnothing to  subordinate agencies  the annual  output may  be
\nboth unsatisfactory  and negligible.  The Lawmaking is not a
\nturnkey project,  ready-made in\t all detail  and  once\tthis
\nsituation is  grasped  the  dynamics  of  delegation  easily
\nfollow. Thus,  we reach\t the second constitutional rule that
\nthe  essentials\t  of  legislative  functions  shall  not  be
\ndelegated  but\t the  inessentials,   however  numerous\t and
\nsignificant they  be, may  well be  made over to appropriate
\nagencies. Of  course,  every  delegate\tis  subject  to\t the
\nauthority and  control of  the\tprincipal  and\texercise  of
\ndelegated  power   can\talways\tbe  directed,  corrected  or
\ncancelled by  the principal.  Therefore, the third principle
\nthat  emerges\tis  that   even\t if   there  be\t delegation,
\nparliamentary control over delegated legislation should be a
\nliving continuity  as  a  constitutional  necessity.  Within
\nthese triple  principles, Operation  Delegation is  at\tonce
\nexpedient, exigent  and even  essential if  the\t legislative
\nprocess is  not to  get stuck up or bogged down or come to a
\ngrinding halt  with a  few complicated\tbills. It  is apt to
\nexcerpt\t here\tan  oft-quoted\tobservation  from  Vasantlal
\nMaganbhai Sanjanwala  affirmed in  Devi Das Gopal Krishnan &
\nOrs(1) :\n<\/p>\n
\t  “The Constitution  confers a\tpower and  imposes a
\n     duty on  the legislature  to make\tlaws. The  essential
\n     legislative  function   is\t the  determination  of\t the
\n     legislative policy\t and its  formulation as  a rule  of
\n     conduct. Obviously\t it cannot abdicate its functions in
\n     favour of\tanother. But  in view  of  the\tmultifarious
\n     activities of  a welfare  State, it  cannot  presumably
\n     work out all the details to suit the varying aspects of
\n     a complex\tsituation. It  must necessarily delegate the
\n     working out  of details  to the  executive or any other
\n     agency. But  there is  a  danger  inherent\t in  such  a
\n     process of delegation. An over
\n855<\/span>
\n     burdened legislature  or one  controlled by  a powerful
\n     executive may unduly overstep the limits of delegation.
\n     It may  not lay  down any policy at all; it may declare
\n     its policy\t in vague  and general terms; it may not set
\n     down any standard for the guidance of the executive; it
\n     may confer\t an arbitrary  power  on  the  executive  to
\n     change or\tmodify the  policy laid\t down by  it without
\n     reserving\tfor  itself  any  control  over\t subordinate
\n     legislation. This\tself effacement of legislative power
\n     in favour\tof another agency either in whole or in part
\n     is beyond\tthe permissible\t limits of delegation. It is
\n     for a  Court to  hold on  a fair,\tgenerous and liberal
\n     construction  of\tan  impugned   statute\twhether\t the
\n     legislature exceeded  such limits. But the said liberal
\n     construction should not be carried by the Courts to the
\n     extent of always trying to discover a dormant or latent
\n     legislative  policy   to  sustain\tan  arbitrary  power
\n     conferred on  executive authorities.  It is the duty of
\n     the Court\tto strike  down without\t any hesitation\t any
\n     arbitrary power  conferred\t on  the  executive  by\t the
\n     legislature.”<\/p><\/blockquote>\n
     Such  being   the\tbasics,\t  accepted  by\tpresidential
\nprofusion of  this Court,  we have  to examine\twhether\t any
\nessential legislative  function has  been transplanted\tinto
\nthe hands  of Government  or corporation by the Act, whether
\nthe delegation\titself is an entrustment of overboard power,
\nso unguided  that the  delegate may  run amok and do what is
\narbitrary, unreasonable\t and violative of Articles 14 and 19
\nof  the\t  Constitution.\t Taxation   is\texaction   and\teven
\nexpropriation and,  therefore, the  right to  property is in
\nperil when  a fiscal measure is afoot. Article 10 comes into
\nplay when  law is made for purposes of taxation and that law
\nmust comply with Part III. Arbitrariness must be excluded in
\nthe  law,  for,\t if  power  is\tarbitrary  it  is  potential
\ninequality and\tArt. 14\t is fatally  allergic to  inequality
\nbefore the law.\n<\/p>\n
     These generalities\t take us  to the  particularities of
\nthe  present   case.  Shri   Tarkunde  turned  the  forensic
\nfusillade on  the total\t absence of  guidance and regulation
\nanywhere in  the statute,  expressly or implicitly, and on a
\ntrue construction,  according to  him, a  blanket power\t has
\nbeen vested by s. 90 on the corporation and, indubitably, on
\nthe Government.\n<\/p>\n
     The jurisprudence\tof delegation  of legislative power,
\nas earlier  mentioned, has  been the  subject matter of this
\nCourt’s pronouncements.\t In  the  absence  of  the  rate  of
\ntaxation being\tindicated by  the Legislature, Shri Tarkunde
\nand  other   counsel  appearing\t on  either  side  drew\t our
\nattention to  Liberty Cinema,(1)  the land-mark\t case on the
\npoint. The  later decisions  have affirmed  the principle in
\nLiberty Cinema. But
\n856<\/span>
\nbefore we  enter into  a fuller discussion we may concretize
\nthe  specific\tcontention  urged   by\t counsel   for\t the
\npetitioners.  Section  90(1)  sets  out\t certain  items\t for
\ntaxation by  the corporation.  The taxes so levied are to be
\nutilised for  the purposes of the Act. Therefore, there is a
\nclear directive contained in the provision about the purpose
\nand limit of the tax. What is needed for the purposes of the
\nAct by\tway of\tfinancial resources  may be  levied  by\t the
\ncorporation. Beyond that, no. If the corporation has a fancy
\nfor spending  money on purposes unconnected with the Act and
\nseeks to  levy a  tax for  the fulfillment  of\tsuch  extra-
\nstatutory objects the mis-adventure must fail. Moreover, the
\nitems on  which taxes  may be  imposed are  also  specified.
\nThus, the legislature has fixed the purpose of the taxation,
\nthe objects  of the taxation and the limits of the taxation.
\nIn short,  s. 90(1)  is a  textbook  illustration  of  valid
\ndelegation by the legislature.\n<\/p>\n
     The offending  area is  approached as  we move  down to
\nsub-section (2)\t (b) which  enables the corporation “to levy
\nany other  tax which  the State\t Legislature  has  power  to
\nimpose under the Constitution”. The fiscal area is obviously
\nspecious and  so the  question directly\t arises whether this
\nover-broad provision  accords with or exceeds the principles
\nof delegation.\tSub-section (3)\t leaves the rates of levy to
\nbe specified  by the  Government and  the legislature, argue
\npetitioners’ counsel,  has given no indication of the minima
\nor the\tmaxima of  such rates.\tCan such  non-fixation of at
\nleast the  maximum rate\t of taxation  be upheld\t or does  it
\nenable the  delegate to usurp the essential functions of the
\nlegislature ?  When we\tproceed further\t to sub-section (5),
\nthe Government\tis clothed  with the power to notify the tax
\nwhich the  corporation shall  levy and,\t in exercising\tthis
\npower,\tnot  even  the\twholesome  obligation  of  receiving
\nrepresentations could  considering objections,\tcontained in
\nthe Proviso  to s.  90(2), is  present. Can such untrammeled
\npower,\tliberated   from  local\t  pressures   and   intimate
\nappreciation of municipal needs, be sanctioned as within the
\ndeligible ambit\t ? These  are  the  substantial\t grounds  of
\nattack which we have to consider presently.\n<\/p>\n
     Back to the Liberty Cinema case (supra), Sarkar, J. who
\nspoke for  the majority\t overruled the\tcontention that\t the
\nlevy in\t question was  a fee  and held that it was a tax and
\naddressed himself to the question of excessive delegation of
\nlegislative functions  to the municipal corporation “because
\nit left\t it entirely  to the latter to fix the amount of the
\ntax and provided no guidance for that purpose”.\n<\/p>\n
     While what\t constitutes an\t essential feature cannot be
\ndelineated in detail it certainly cannot include a change of
\npolicy. The  legislature is the master of legislative policy
\nand if\tthe delegate  is free  to switch  policy it  may  be
\nusurpation of legislative power itself. So we have
\n857<\/span>
\nto investigate\twhether the  policy of\tlegislation has been
\nindicated sufficiently\tor even\t change of  policy has\tbeen
\nleft to\t the sweet will and pleasure of the delegate in this
\ncase.\n<\/p>\n
     We are  clearly of\t the view  that there is fixation of
\nthe policy  of the legislation in the matter of taxation, as
\na close\t study of  s. 90  reveals; and exceeding that policy
\nwill invalidate\t the action  of the  delegate. What  is that
\npolicy ?  The levy  of the  taxes  shall  be  only  for\t the
\npurposes  of  the  Act.\t Diversion  for\t other\tpurposes  is
\nillegal.  Exactions   beyond  the   requirements   for\t the
\nfulfillment of\tthe purposes  of the  Act are  also invalid.
\nLike in\t s. 90(1),  s. 90(2)  also  contains  the  words  of
\nlimitation `for\t the purposes of this Act’ and that limiting
\nfactor governs\tsub-sections (3),  (4) and  (5). Sub-section
\n(3) vests  nothing new beyond sub-sections (1) and (2). Sub-
\nsection (4)  does not authorise the government to direct the
\ncorporation to\timpose any  tax falling\t outside sub-section
\n(1) or sub-section (2). Sub-section (5) also is subject to a
\nsimilar circumscription\t because the Government cannot issue
\nan order  to impose  a tax  outside the\t limitation of\tsub-
\nsection (1) or sub-section (2). Thus, the impugned provision
\ncontains a  severe restriction that the taxation leviable by
\nthe  corporation,  or  by  the\tGovernment  acting  for\t the
\ncorporation, shall be geared wholly to the goals of the Act.
\nThe fiscal  policy of  s. 90 is manifest. No tax under guise
\nof s. 90(2) (b) can be charged if the purposes of the Act do
\nnot require or sanction it. The expression “purposes of this
\nAct” is\t pregnant with\tmeaning. It  sets a  ceiling on\t the
\ntotal quantum  that  may  be  collected.  It  canalises\t the
\nobjects for  which the fiscal levies may be spent. It brings
\ninto focus  the functions,  obligatory or  optional, of\t the
\nmunicipal bodies  and the raising of resources necessary for
\ndischarging those functions-nothing more, nothing else.\n<\/p>\n
     In Liberty\t Cinema (supra)\t it was\t contended that\t the
\nrate of\t tax was  an essential feature of legislation and if
\nthe power to fix it were abandoned it amounted to abdication
\nof legislative power. After an exhaustive examination of the
\njudgments of  this Court,  Sarkar, J. reached the conclusion
\nthat there was clear authority “that the fixing of rates may
\nbe left\t to the\t non-legislative body”.\t The matter does not
\nend here, since the delegate may under guise of this freedom
\ntyrannies and  exact exorbitant\t sums which  the legislature
\nwould hardly  have intended.  If this possibility exists and
\nthere is  no guideline\tgiven to the non-legislative body in
\nthe matter  of fixation\t of  rates,  the  result  may  be  a
\nfrustration of\tthe  legislative  object  itself.  For\tthis
\nreason,\t the  Court  in\t the  Liberty  Cinema  (supra)\tcase
\nobserved as axiomatic :\n<\/p>\n
\t  “No doubt  when the power to fix rates of taxes is
\n     left to  another body,  the  legislature  must  provide
\n     guidance for such
\n858<\/span>
\n     fixation. The  question  then  is,\t was  such  guidance
\n     provided in the Act ? We first wish to observe that the
\n     validity of  the guidance\tcannot be  tested by a rigid
\n     uniform rule; that must depend on the object of the Act
\n     giving power  to fix  the rate.  It is  said  that\t the
\n     delegation\t of   power  to\t  fix  the  rates  of  taxes
\n     authorised for  meeting the needs of the delegate to be
\n     valid, must provide the maximum rate that can be fixed,
\n     or lay  down rules\t indicating  that  maximum.  We\t are
\n     unable to see how the specification of the maximum rate
\n     supplies any  guidance as\tto how the amount of the tax
\n     which no  doubt has  to be\t below the maximum, is to be
\n     fixed. Provision for such maximum only sets out a limit
\n     of the  rate to  be imposed and a limit is only a limit
\n     and not a guidance.\n<\/p><\/blockquote>\n
\t  It seems to us that there are various decisions of
\n     this Court\t which support\tthe proposition\t that for  a
\n     statutory\tprovision   for\t raising   revenue  for\t the
\n     purposes of  the delegate,\t as the\t section  now  under
\n     consideration is,\tthe needs  of the  taxing  body\t for
\n     carrying out  its functions under the statute for which
\n     alone the\ttaxing power was conferred on it, may afford
\n     sufficient guidance  to make  the power to fix the rate
\n     of tax valid.”\n<\/p><\/blockquote>\n
(Pp. 493-494)
\n     In the  Western India  Theatres case  (supra) the power
\ngiven to  the corporation  (of the  city of Poona), in terms
\nvery wide,  to levy  “any other\t tax” came  to be considered
\nfrom  the   point  of  view  of\t abdication  of\t legislative
\nfunction. The negation of this argument was based on the key
\nwords of  limitation contained\ttherein,  namely,  “for\t the
\npurposes of  the Act”  and it  was held\t “that this  permits
\nsufficient guidance for the imposition of the tax.”\n<\/p>\n
     In Devi  Das Gopal\t Krishnan &  Ors. (supra) this Court
\nagain considered  a similar  contention. The crucial passage
\nin the\tjudgment of  Sarkar, J.\t was  there  extracted\twith
\napproval by Subba Rao, C.J. :\n<\/p>\n
\t  “It (the  Municipal Corporation)  has\t to  perform
\n     various statutory functions. It is often given power to
\n     decide when  and in  what manner  the functions  are to
\n     performed. For  all this  it needs\t money and its needs
\n     will vary\tfrom  time  to\ttime,  with  the  prevailing
\n     exigencies. Its  power  to\t collect  tax,\thowever,  is
\n     necessarily  limited   by\tthe   expenses\trequired  to
\n     discharge those  functions. It  has,  therefore,  where
\n     rates have\t not been  specified in\t the statute, to fix
\n     such rates as may be necessary to meet its needs. That,
\n     we think,\twould be  sufficient guidance  to  make\t the
\n     exercise of  its power  to fix the rates valid.”#R#(Pp.<\/p><\/blockquote>\n
     562-563)
\n859<\/span>
\n     In the  Municipal Corporation  of\tDelhi(1)  case,\t the
\nproposition  that   where  the\t power\tconferred   on\t the
\ncorporation was\t not unguided,\talthough widely\t worded,  it
\ncould not  be said  to amount  to excessive  delegation, was
\nupheld. Delegation  coupled with a policy direction is good.
\nCounsel emphasised  that the  court had\t made a\t significant
\ndistinction between  the local\tbody with  limited functions
\nlike a municipality and Government :\n<\/p>\n
\t  “The needs  of the  State are\t unlimited  and\t the
\n     purposes for which the State exists are also unlimited.
\n     The result of making delegation of a tax like sales tax
\n     to the  State Government  means a\tpower to fix the tax
\n     without any limit even if the needs and purposes of the
\n     State are\tto be taken into account. On the other hand,
\n     in the case of a municipality, however large may be the
\n     amount required  by it  for its  purposes it  cannot be
\n     unlimited, for the amount that a municipality can spend
\n     is limited\t by the\t purposes for which it is created. A
\n     municipality cannot  spend anything  for  any  purposes
\n     other than those specified in the Act which creates it.
\n     Therefore in  the case  of a  municipal  body,  however
\n     large may be its needs, there is a limit to those needs
\n     in view  of the  provisions of  the Act creating it. In
\n     such circumstances there is a clear distinction between
\n     delegating a  power to fix rates of tax, like the sales
\n     tax, to  the State Government and delegating a power to
\n     fix certain  local taxes for local needs to a municipal
\n     body.\n<\/p><\/blockquote>\n
\t  A review  of these  authorities therefore leads to
\n     the conclusion  that so  far as this Court is concerned
\n     the  principle   is  well\testablished  that  essential
\n     legislative function  consists of\tthe determination of
\n     the legislative policy and its formulation as a binding
\n     rule  of\tconduct\t and  cannot  be  delegated  by\t the
\n     legislature.  Nor\tis  there  any\tunlimited  right  of
\n     delegation inherent  in the  legislative power  itself.
\n     The legislature  must  retain  in\tits  own  hands\t the
\n     essential\tlegislative   functions\t and   what  can  be
\n     delegated\tis   the  task\tof  subordinate\t legislation
\n     necessary for  implementing the purposes and objects of
\n     the Act.  Where the  legislative policy  is  enunciated
\n     with sufficient  clearness or  a standard is laid down,
\n     the courts\t should not  interfere. What guidance should
\n     be given  and to  what extent  and whether guidance has
\n     been given\t in a  particular case\tat all\tdepends on a
\n     consideration of the provisions of the parti-\n<\/p><\/blockquote>\n
860<\/span><\/p>\n
     cular Act\twith which  the Court  has to deal including
\n     its preamable. Further it appears to us that the nature
\n     of the  body to  which delegation\tis made\t is  also  a
\n     factor to\tbe taken  into consideration  in determining
\n     whether there  is sufficient  guidance in the matter of
\n     delegation.”\n<\/p><\/blockquote>\n
\t  “……………………..<\/p><\/blockquote>\n
     It\t is  too  late\tin  the\t day  to  contend  that\t the
\njurisprudence of  delegation of\t legislative power  does not
\nsanction parting with the power to fix the rate of taxation,
\ngiven indication  of the  legislative policy with sufficient
\nclarity. In  the case  of a  body like\ta municipality\twith
\nfunctions which are limited and the requisite resources also
\nlimited, the  guideline contained in the expression “for the
\npurposes of  the Act” is sufficient, although in the case of
\nthe State  or Central  Government  a  mere  indication\tthat
\ntaxation may  be raised for the purposes of the State may be
\ngiving a  carte blanche\t containing no indicium of policy or
\npurposeful  limitation.\t In  a\twelfare\t State\tallowing  in
\nprivations,  the  total\t financial  needs  may\ttake  us  to
\nastronomical figures.  Obviously that  will be\tno guideline
\nand so\tmust be\t bad  in  law.\tSomething  more\t precise  is
\nnecessary; some\t policy orientation  must be  particularised
\nShri Tarkunde relied on this differentiation in attacking s.
\n90(6)  of   the\t Act.  He  argued  that\t had  the  municipal
\ncorporation done the job there would have been some guidance
\nfrom the section. But when the Government did it, it did not
\nhave any  such restraint  and could, therefore, run berserk.
\nWe do not appreciate this contention as we will explain at a
\nlater stage.  Suffice it to say that flexibility in the form
\nthe legislative\t guidance  may\ttake,  is  to  be  expected.
\nWanchoo, C.J. explained :\n<\/p>\n
\t  “It will  depend upon\t the circumstances  of\teach
\n     statute under  consideration; in some cases guidance in
\n     broad general  terms may be enough; in other cases more
\n     detailed guidance may be necessary. As we are concerned
\n     in the  present case with the field of taxation, let us
\n     look at the nature of guidance necessary in this field.
\n     The guidance  may take  the form  of providing  maximum
\n     rate of  tax upto\twhich a\t local body may be given the
\n     discretion to  make its choice, or it may take the form
\n     of providing  for consultation  with the  people of the
\n     local  area  and  then  fixing  the  rates\t after\tsuch
\n     consultation. It  may also\t take the form of subjecting
\n     the rate  to be fixed by the local body to the approval
\n     of Government  which acts as a watch-dog on the actions
\n     of the  local body\t in this  matter on  behalf  of\t the
\n     legislature. There\t may be other ways in which guidance
\n     may
\n861<\/span>
\n     be provided.  But the  purpose of\tguidance, whatsoever
\n     may be  the manner\t thereof, is  to see  that the local
\n     body fixes\t a reasonable rate of taxation for the local
\n     area concerned.  So long  as the  legislature has\tmade
\n     provision to  achieve that reasonable rates of taxation
\n     are fixed\tby local  bodies, whatever may be the method
\n     employed for  this purpose-provided it is effective, it
\n     may be  said that\tthere is guidance for the purpose of
\n     fixation of  rates of  taxation. The  reasonableness of
\n     rates may\tbe ensured  by fixing a maximum beyond which
\n     the local\tbodies may  not go.  It may  be\t ensured  by
\n     providing safeguards  laying  down\t the  procedure\t for
\n     consulting the  wishes of the local inhabitants. It may
\n     consist in the supervision by Government of the rate of
\n     taxation by  local bodies.\t So  long  as  the  law\t has
\n     provided a\t method by  which  the\tlocal  body  can  be
\n     controlled\t and   there  is   provision  to   sec\tthat
\n     reasonable rates  are fixed,  it can be said that there
\n     is guidance  in the  matter of  fixing rates  for local
\n     taxation.\tAs  we\thave  already  said  there  is\tpre-
\n     eminently a  case for delegating, the fixation of rates
\n     of tax to the local body and so long as the legislature
\n     has provided  a method  for seeing that rates fixed are
\n     reasonable, be  it in  one form  or another,  it may be
\n     said  that\t there\tis  guidance  for  fixing  rates  of
\n     taxation and  the power  assigned to the local body for
\n     fixing the\t rates is  not uncontrolled and uncanalised.
\n     It is  on the basis of these principles that we have to
\n     consider the Act with which we are concerned.\n<\/p><\/blockquote>\n
(pp. 269-270)
\n     In the  Municipal Corporation  of Delhi (supra) case it
\nwas significantly observed :\n<\/p>\n
\t  “According to\t our history  also there  is a\twide
\n     area of delegation in the matter of imposition of taxes
\n     to local  bodies subject  to controls and safeguards of
\n     various kinds  which partake  of the nature of guidance
\n     in the matter of fixing rates for local taxation. It is
\n     in this  historical background  that we have to examine
\n     the provisions of the Act impugned before us.”\n<\/p><\/blockquote>\n
(p. 271)
\nBoth  the   sides  relied   on\tcertain\t important  criteria
\ncontained in  the  judgment  of\t Wanchoo,  C.J.,  especially
\nbecause it  is a Bench of seven Judges and the ratio therein
\nlaid down  has considerable  authority and binds us. Dealing
\nwith municipal bodies and the nature and
\n862<\/span>
\ncontent in  that Municipal  Act, the  court observed what is
\ninstructive for us in the present case :\n<\/p>\n
\t  “This is  in our  opinion a  great  check  on\t the
\n     elected  councillors  acting  unreasonably\t and  fixing
\n     unreasonable rates\t of taxation.  This is\ta democratic
\n     method of\tbringing to book the elected representatives
\n     who act  unreasonably in  such matters.  It is  however
\n     urged  that   s.  490  of\tthe  Act  provides  for\t the
\n     supersession of  the Corporation  in  case\t it  is\t not
\n     competent to  perform or  persistently makes default in
\n     the performance  of duties\t imposed upon it by or under
\n     the Act  or any  other law\t or exceeds  or\t abuses\t its
\n     power.  In\t  such\ta  case\t the  elected  body  may  be
\n     superseded and  all powers\t and  duties  conferred\t and
\n     imposed upon  the Corporation  shall be  exercised\t and
\n     performed by  such officer\t or authority as the Central
\n     Government may provide in this behalf. It is urged that
\n     when this\thappens the  power of  taxation goes  in the
\n     hands  of\t some  officer\tor  authority  appointed  by
\n     Government\t who   is  not\t accountable  to  the  local
\n     electorate and  who may  exercise\tall  the  powers  of
\n     taxation conferred\t on the\t elected Corporation  by the
\n     Act. . . .”\n<\/p><\/blockquote>\n
\t  “Another guide or control on the limit or taxation
\n     is to  be\tfound  in  the\tpurposes  of  the  Act.\t The
\n     Corporation  has\tbeen  assigned\t certain  obligatory
\n     functions which  it must  perform and for which it must
\n     find money\t by taxation.  It  has\talso  been  assigned
\n     certain discretionary  functions. If  it undertakes any
\n     of them  it must find money. Even though the money that
\n     has to  be found  may be  large, it  is not, as we have
\n     already indicated,\t unlimited for\tit must\t be only for
\n     the  discharge   of  functions  whether  obligatory  or
\n     optional assigned\tto the\tCorporation.  The  limit  to
\n     which   the    Corporation\t  can\ttax   is   therefore
\n     circumscribed by  the need\t to finance  the  functions,
\n     obligatory or optional which it has to or may undertake
\n     to perform.  It will  not be open to the Corporation by
\n     the use  of taxing\t power to collect more than it needs
\n     for the functions it performs….”\n<\/p><\/blockquote>\n
\t  “Another limit  and guideline\t is provided  by the
\n     necessity of  adopting budget  estimates each  year  as
\n     laid down\tin s.  109 of the Act. That section provides
\n     for division of the budget of the Corporation into four
\n     parts  i.e.  general,  electricity\t supply,  transport,
\n     water and\tsewage disposal.  The budget  will show\t the
\n     revenue and expenditure and those
\n863<\/span>
\n     must balance  so that  the\t limit\tof  taxation  cannot
\n     exceed the\t needs of  the Corporation  as shown  in the
\n     budget to\tbe prepared under the provisions of the Act.
\n     These  four  budgets  are\tprepared  by  four  Standing
\n     Committees of  the Corporation and are presented to the
\n     Corporation where\tthey are adopted after debate by the
\n     elected representatives  of the local area. Preparation
\n     of\t budget\t  estimates  and   their  approval   by\t the
\n     Corporation is  therefore another\tlimit and  guideline
\n     within which the power of taxation has to be exercised.
\n     Even though  the needs  may be  large, we\thave already
\n     indicated that  they cannot be unlimited in the case of
\n     the Corporation,  for its functions both obligatory and
\n     optional are  well defined\t under the  Act. Here  again
\n     there is  a limit\tto which  the taxing  power  of\t the
\n     Corporation can  be exercised in the matter of optional
\n     taxes as well, even though there is no maximum fixed as
\n     such in the Act.”\n<\/p><\/blockquote>\n
\t\t\t\t\t       (Pp. 271-273)
\n     In the  present case  it was  the State Government, not
\nthe municipal  corporation, which  fixed the  rate; but\t the
\nGovernment did only what the Corporation ought to have done.\n<\/p><\/blockquote>\n
It acted  for the purposes of the corporation’s finances and
\nfunctions and  not to  replenish its  own  coffers.  In\t the
\nMunicipal Corporation  of Ahmedabad City,(1) a further point
\nfell for  consideration which  has  some  relevance  to\t the
\npresent set  of arguments. Shri Tarkunde submitted that even
\nif the\tprovision requiring  the sanction  of the Government
\nfor the rate fixed by the corporation were a guideline and a
\ncontrol indicative  of a legislative policy, that was absent
\nin the\timpugned levy  since the  Government directly acted.
\nShelat, J. negatived a kindred submission:\n<\/p>\n
\t  “…….It  is  impossible  to  say  that  when  a
\n     provision requiring  sanction of  the Government to the
\n     maximum rate  fixed by  the Corporation  is absent, the
\n     rest of  the factors  which exist in the Act lose their
\n     efficacy and  cease to  be guidelines.  Furthermore, if
\n     the Corporation  were to  misuse the flexibility of the
\n     power given  to it\t in  fixing  the  rates,  the  State
\n     legislature can at any moment withdraw that flexibility
\n     by fixing the maximum limit up to which the Corporation
\n     can tax.  Indeed, the State Legislature has now done so
\n     by s.  4 of  Gujarat Act,\t8 of  1968. In\tview of\t the
\n     decisions cited  above it\tis not\tpossible for  us  to
\n     agree with counsel’s contention
\n864<\/span>
\n     that the  Act confers on the Corporation such arbitrary
\n     and uncontrolled  power as to render such conferment an
\n     excessive delegation.”(1)
\n     We have  no hesitation in holding that the law is well-\n<\/p><\/blockquote>\n
settled and  none of  the  canons  governing  delegation  of
\nlegislative power have been breached in the present case.\n<\/p>\n
     We will  explain a little more in detail, with specific
\nreference to the scheme of the Act, why we hold that the tax
\nis valid and does not suffer from the infirmity of excessive
\ndelegation.\n<\/p>\n
     The thrust of Shri Tarkunde’s argument is that even if,
\nin the\tlight of  Liberty Cinema  (supra) and later rulings,
\nguidelines are\tfound in  s. 90 (2) of the Act, the notified
\nimpost being  by the  State  Government\t did  not  have\t the
\nbenefit of  such guidelines.  The local\t body knew precisely
\nthe local  needs and  the cost\tof such local services. Like
\nwise, the local councillors would be responsive and to local
\nlobbies and be restrained from reckless taxes. None of these
\ncontrols were operational when Government acted or directed.
\nMoreover, the absence of the wholesome obligation to receive
\nand pay\t regard to  objections [Proviso to s. 90(2)] removed
\nthe procedural\tcheck envisaged\t by the\t Legislature.  These
\ncriticisms highlight  the role\tof Government in the setting
\nof s.  90(5) and  its competence  to be\t acquainted with the
\nneeds of  municipal denizens, the finances of the local body
\nand the like.\n<\/p>\n
     It\t  must\t be   remembered   that\t  as   between\t two
\ninterpretations that  which sustains the validity of the law
\nmust be\t preferred. A close look at the schematic provisions
\nand  administrative   realities\t is   very   revealing.\t  Is
\nGovernment innocent  of the  total needs of municipal bodies
\nand indifferent\t to the legitimate pressures of its denizens
\n?\n<\/p>\n
     An\t overview  of  local  self-government  may  set\t the
\nperspective. The  statutory pattern  of municipal government
\nis substantially the same all over the country. The relevant
\nlegislation fabricates these local bodies, invests them with
\ncorporate personality, breathes life into them, charges them
\nwith welfare  functions,  some\tobligatory,  some  optional,
\nregulates their composition through elected representatives,
\nprovides for  their finances  by fees  and taxes and heavily
\ncontrols their\tself-government status\tthrough a Department
\nof the State Government in various ways, including direction
\nand correction,\t sanction and  supersession. Consequentially
\nthe law\t clothes  the  State  Government  with\tconsiderable
\npowers over almost every aspect of municipal work-\n<\/p>\n
865<\/span><\/p>\n
ing Local  self-government,  realistically  speaking,  is  a
\nsimulacrum of  Art. 40\tand democratically speaking, a half-
\nhearted euphemism,  for in  substance, these elected species
\nare talking  phantoms with  a hierarchy\t of State  officials
\nhobbling their\tlocomotion.  Their  exercises  are  strictly
\noverseen  by  the  State  Government,  their  resources\t are
\nprecariously dependent on the grace of the latter and their,
\nfunctions are  fulfilled through a chief executive appointed
\nby the State Government. Floor-level democracy in India is a
\ndevalued rupee,\t Art. 40  and the evocative opening words of
\nthe Constitution,  notwithstanding. Grass roots never sprout
\nuntil decentralisation becomes a fighting creed, not a pious
\nchant. What happens to Panchayats applies to municipalities.\n<\/p>\n
     This description has critical relevance to the cases on
\nhand because  one of  the propositions\tunderlying the major
\narguments advanced  before us is that while municipal bodies
\nknow their  needs and  respond to local pressures and tailor
\ntheir taxes  accordingly, the  distant State  Government  is
\nneither aware nor responsive and the impugned tax measure is
\nbad because  the pragmatic  and policy guidelines of (a) the
\nlocal  people’s\t welfare  requirements\tvis-a-vis  available
\nmunicipal finances,  and (b) people’s pressurising proximacy
\nand municipality’ correctional reaction to undue tax burdens
\nare absent  when the  power is exercised by a remote control
\nboard niched in the State Secretariat. But if the picture is
\nof a  powerless talking\t shop of elected councillors passing
\nresolutions but\t all the  do’s\tand  don’ts,  sanctions\t and
\napprovals, countermands and even supersession of the Council
\nitself reside  in the State Government, the effective voice,
\nthe meaningful\tresponses,  the\t appreciation  of  budgetary
\nneeds and  gaps and  need for  grants and  a host  of  other
\nresponsibilities can  be traced\t to the\t Government. Such is
\nthe backdrop to the discussion of the issues raised.\n<\/p>\n
     Now let  us scan  the Act from this angle. Corporations
\nare created  for the purposes of carrying out the provisions
\nof  the\t  Act  and   they   are\t  charged   with   municipal
\nadministration\t(see  s.  4).  So,  corporations  cannot  do
\nanything beyond\t the  purposes\tset  out  in  the  statutory
\nprovisions.  This  itself  is  a  statutory  restriction  on
\naction.\t The   composition  of\tthe  body  corporate  is  by
\nperiodically elected councillors (see s. 5) and this feature
\nensures\t responsive   action.  The   powers  necessary\t for
\nmunicipal government  are spelt\t out as\t also the obligatory
\nand discretionary functions (see Chapter III).\n<\/p>\n
     Now  come\t certain  other\t  aspects  of\tlocal  self-
\ngovernment. The\t entire executive  power of  the corporation
\nvests in  the Commissioner  who is  appointed by Government.
\nThis means that the Corporation Council takes a back seat in
\nthe municipal administration see ss. 47,
\n866<\/span>
\n52  et\tal.  Section  54  brings  the  Government  into\t the
\nexpenditure picture.  The municipal staff also is, in a way,
\nunder Government control (s. 71).\n<\/p>\n
     Money shall be spent by the municipality only according
\nto budget provisions and budget estimates shall be submitted
\nto Government  for approval  which has\tthe power  to modify
\nthem. Thus,  the financial  control over  the corporation by
\nGovernment is a statutory fact.\n<\/p>\n
     Now we  may consider  the mode  of raising tax revenue.
\nAny non-traditional  tax (i.e. which falls under s. 90(2) of
\nthe Act)  has to  be with  the prior approval of Government.
\nIndeed, affirmative  direction to impose taxes may be issued
\nby the\tGovernment to the local body and if the addressee is
\nindifferent the Government itself may impose the tax and the
\ncorporation shall  levy such  tax. Sub-section\t(6)  enables
\nGovernment to  make other  tax payments to municipal bodies.
\nMunicipal borrowings  require government sanction, municipal
\naccounts shall\tbe audited  by government  auditors. Chapter
\nXXII provides  for  further  government\t control  upto\teven
\nsupersession of the corporation itself. Even the resolutions
\nof corporations\t may be\t suspended  by\tGovernment  and\t its
\nproceedings annulled  or modified.  There is a whole army of
\ngovernmental  minions  in  the\tdepartment  of\tlocal  self-
\ngovernment to sit upon, check, oversee and control municipal
\ndoings\tthat  the  elective  element  becomes  a  decorative
\nparlour.\n<\/p>\n
     This conspectus  of provisions  brings into bold relief
\nthe anaemic nature of municipal autonomy. Full-blooded units
\nof self-government,  reflecting full  faith in decentralised
\ndemocracy uninhibited  by a  hierarchy of bureaucrats is the
\nvision of  Art. 40.  While the Gandhian goal is of a shining
\ncrescent on  a starry  sky the\tsorry reality  is  that\t our
\nmunicipalities vis-a-vis government are wan like a full moon
\nat midday.\n<\/p>\n
     This study of the statutory scheme shows that, in large
\nmeasure, municipal  councils reign,  municipal commissioners
\nrule; local  self government  is an  experiment in  directed
\ndemocracy by  the  bureaucracy,\t Art.  40,  notwithstanding.
\nState Governments  master-mind municipal  administration  in
\nbroad policies\tand even  in smaller details and legally can
\nsuspend\t resolutions   and  supersede\tthe  organ   itself.
\nMunicipal legislation  sanctions  this\tOperation  Mask.  If
\npluralism  and\t decentralisation  are\t to  strengthen\t our
\ndemocracy   more    authority\tand   autonomy,\t  at   least
\nexperimentally, must  be vested\t in local  bodies.  To\tday,
\nprompt elections  when periods\texpire are rare; councillors
\nexist, debate,\tresolve, but  power eludes  them.  Even\t so,
\nmunicipal maya also counts ceremonially and otherwise.\n<\/p>\n
867<\/span><\/p>\n
     To set  the record\t straight, we  must state  that many
\nmunicipal bodies  do exercise  their limited powers properly
\nand  serve   the  public  without  nagging  interference  by
\nGovernment officials.  Municipalities are  realities,  often
\nprecarious, though.\n<\/p>\n
     This statutorily  sanctified comprehensive oversight by
\nGovernment weaken the assumption of Shri Tarkunde that State
\nGovernments know little of the needs and respond remotely to
\nthe pressures  of  the\tlocality  and  that  the  guidelines
\nstressed in  the rulings  cited above vanish when Government
\ndirectly operates  under s.  90(5). The\t finances, budgetary
\nestimates and  many aspects of the affairs of each municipal
\nbody, reach  the Government, channelled through its minions,
\nand, by force of statute, are approved, sanctioned, modified
\nor reversed  by the State Secretariat. So, there is not much
\nforce in  the submission  that under  s. 90(5)\tgovernmental
\naction\tmay   be  a   blind  man’s   buff,  not\t intelligent
\nappreciation.\n<\/p>\n
     Secondly, under  s. 90(5)\tGovernment acts\t to  augment
\nmunicipal  revenues  and  so  will,  understandably,  inform
\nitself of  the needs  of  the  corporation  and,  on  fiscal
\neconomics, ‘of\twhat the  traffic will\tbear’. The statutory
\nstrategy also  ensures this.  First, a\tdirective is  given,
\nobviously  after   considering\trelevant  matters.  Only  if
\nindifference or\t intractability\t is  displayed,\t the  fiscal
\nsword of s. 90(5) is unsheathed.\n<\/p>\n
     Moreover, there  is overall control by the legislature,
\nsometimes, ineffective, sometimes meaningful. It is familiar
\nknowledge that there are a number of institutionalised means
\nby which  the legislature  exercises supervision and control
\nover municipal\tmatters. Broadly  speaking,  they  are:\t (a)
\nthrough inter-relations, (b) by discussions and debates, (c)
\nby approval  or otherwise  of rules  and orders,  and (d) by
\nfinancial control  when the  budget is presented. A study of
\nthe legislative\t proceedings in\t the various  States of\t the
\ncountry brings\tout many  of these  means  of  control\t(see
\nIndian Administrative  System, edited  by Ramesh  K. Arora &
\nCo.  Chapter   17).  In\t  a  sense,  the  general  municipal
\nadministration\tcomes  under  fire  in\tthe  House  on\tmany
\noccasions, including  during the  debate on  the  Governor’s
\nAddress.  Financial   control\tand   supervision   by\t the
\nlegislators come  up when  budget  proposals  which  contain
\nallocation for municipal administration are presented to the
\nHouse and  at the time of the Appropriations Bill. Moreover,
\nthe Public  Accounts Committee,\t the Estimates Committee and
\nlike other bodies also make functional probes into municipal
\nadministration-fiscal and  other. There\t may be\t a  big\t gap
\nbetween the  power of control and its actual exercise but it
\nis also\t a fact that in a general way the political echelons
\nin Government  and the bureaucracy in turn are influenced in
\ntheir policies by the criticisms
\n868<\/span>
\nof the\tmunicipal administration  on the  floor of the House
\nand through  other representations.  We\t cannot,  therefore,
\ndismiss the  legal position  that there\t is control  by\t the
\nLegislature over  Government in its supervision of municipal
\nadministration therefore,  delegated legislation  cannot  be
\nsaid to be uncontrolled or unchecked by the delegator.\n<\/p>\n
     This discussion  is of  critical importance  in view of
\nthe  argument\tput  forward  by  Shri\tTarkunde  that\twhen
\nGovernment exercises  power under  s. 90(6) it is a law unto
\nitself, unbridled  and uncontrolled  by the  Legislature. We
\nmay now\t refer to a few decisions which have been brought to
\nour notice by counsel appearing for the municipal bodies and
\nthe  State   of\t Punjab\t to  make  out\tthat  the  needs  of
\nmunicipalities and  the pressures of local people are within
\nthe ken\t of the\t State Government and they also respond like
\nmunicipal  bodies   and\t guide\t themselves  in\t the  manner
\ncorporations  do.  More\t importantly,  excessive  delegation
\nstands\tnegatived   because  of\t  legislative  control\tover
\nGovernment. Even  in the  Liberty Cinema  case, (supra)\t the
\ncontrol by  Government over the municipal administration was
\nrelied upon  as a  policy guideline  and it is an a fortiori
\ncase if\t the Government itself takes action, responsible and
\nresponsive as  it is  to the  elected representatives of the
\nHouse.\n<\/p>\n
     Great stress  was laid  on Papiah’s case(1) which dealt
\nwith subordinate  legislation  elaborately  and\t upheld\t the
\nvalidity of  a provision  where, superficially\tviewed,\t too
\nwide a power had been delegated. Mathew, J. speaking for the
\ncourt, gave  considerable latitude  to\tthe  Legislature  in
\ndelegating its\tpower and referred to many prior rulings. He
\nquotes Subba Rao, C.J. to say:\n<\/p>\n
     “An over-burdened\tLegislature or\tone controlled\tby a
\n     powerful executive\t may unduly  overstep the  limits of
\n     delegation. It  may not  lay down any policy at all; It
\n     may declare  its policy  in vague and general terms; it
\n     may not  set down\tany standard for the guidance of the
\n     executive; it  may confer\tan arbitrary  power  on\t the
\n     executive to  change or  modify the policy laid down by
\n     it, without  reserving  for  itself  any  control\tover
\n     subordinate  legislation.\t This\tself-effacement\t  of
\n     legislative power in favour of another agency either in
\n     whole or  in part\tis beyond  the permissible limits of
\n     delegation.”(2)
\n869<\/span>
\n     Nevertheless,  this   observation\twas  neutralised  by
\nanother made by Hegde, J. in Bishar Dayal (1):\n<\/p><\/blockquote>\n
\t  “However  much   one\tmight\tdeplore\t  the\t‘New
\n     Despotism’ of the executive, the very complexity of the
\n     modern  society   and  the\t  demand  it  makes  on\t its
\n     Government have set in motion forces which have made it
\n     absolutely necessary  for the  Legislatures to  entrust
\n     more and  more  powers  to\t the  executive.  Text\tbook
\n     doctrines evolved\tin the\t19th Century  be come out of
\n     date.”<\/p><\/blockquote>\n
     Mathew, J. proceeded to cover English cases and reached
\nthe conclusion:\n<\/p><\/blockquote>\n
\t  “The legislature  may also retain its control over
\n     its delegate  by exercising  its power  of repeal. This
\n     was the  basis on which the Privy Council in Cobb & Co.
\n     v. Kropp(2)  upheld the  validity of  delegation of the
\n     power to  fix rates  to the  Commissioner Transport  in
\n     that case.”<\/p><\/blockquote>\n
\t\t\t\t\t\t     (P.613)
\n     The learned  Judge quoted\tthe Privy  Council(3)  which
\nheld that  the Legislature  was entitled to use any agent or
\nmachinery that it considered for carrying out the object and
\nthe purposes  of the  Acts and\tto use\tthe Commissioner for
\nTransport as  its instrument  to fix and recover the licence
\nand permit  fees, provided  it preserved  its  own  capacity
\nintact and  retained perfect  control over  him; that  as it
\ncould at  any time  repeal the legislation and withdraw such
\nauthority and discretion as it had vested in him, it had not
\nassigned, transferred  or abrogated  its sovereign  power to
\nlevy  taxes,   nor  had\t  it  renounced\t  or  abdicated\t its
\nresponsibilities in  favour of\ta newly\t created legislative
\nauthority and  that, accordingly,  the two  Acts were valid,
\nLord Morris of Borth-y-Gest said:\n<\/p><\/blockquote>\n
\t  “What\t they\t(the  legislature)  created  by\t the
\n     passing of\t the Transport\tActs could not reasonably be
\n     described\tas  a  new  legislative\t power\tor  separate
\n     legislative  body\t armed\twith   general\t legislative
\n     authority (see  R. v.  Burah, 1978)  A.C. 889). Nor did
\n     the Queensland  Legislatare ‘create and endow’ with its
\n     own capacity a new legislative power not created by the
\n     Act to  which it  owes its own existence (see In re the
\n     Initiative and Referendum Act (1919) A.C. 945 at 946).”\n<\/p><\/blockquote>\n
870<\/span><\/p>\n
     The point\tto be emphasised-and this is rather crucial-\n<\/p><\/blockquote>\n<\/blockquote>\n
is the\tstatement of  their Lordships  that the\t legislature
\npreserved its  capacity intact\tand retained perfect control
\nover the  Commissioner for Transport inasmuch as it could at
\nany time  repeal the legislation and with draw the authority
\nand discretion\tit had\tvested in  him, and,  therefore, the
\nlegislature did not abdicate its functions.<\/p><\/blockquote>\n
     The proposition so stated is very wide and sweeping. By
\nthat standard,\tthere is  nothing unconstitutional  about s.
\n90(5) of the Act.\n<\/p>\n
     In the  course of\tthe argument certain observations of
\nthis Court  were read  to the effect that there was always a
\ncheck by  the courts on unconstitutional misuse of delegated
\npower and  that, in itself with out more, was good enough to
\nmake the  delegation good. So stated, the proposition may be
\nperhaps too  wide to  be valid; for any naked delegation may
\nthen be\t sustained by stating that the court is there as the
\nwatch-dog. We do not have to go that far in the present case
\nand so\twe make\t no final pronouncement on this extension of
\ndelegations jurisprudence.\n<\/p>\n
     We must  state, while  concluding that Punjab & Haryana
\nHigh Court  has overruled  similar  contentions\t on  grounds
\nwhich have  our approval  [see AIR  1977 P&H  297 and 74 PLR
\n(1972) P 149].\n<\/p>\n
     We are  conscious that  constitutional legitimation  of
\nunlimited power\t of  delegation\t to  the  Executive  by\t the
\nLegislature may,  on critical  occasions, be  subversive  of
\nresponsible government and erosive of democratic order. That
\nperil  prompts\tus  to\thint  at  certain  portents  to\t our
\nparliamentary system,  not because  they are  likely new but
\nbecause society may have to pay the price some day.\n<\/p>\n
     As\t a  back-drop  to  this\t train\tof  thoughts  a\t few
\nstatements from\t a working  paper presented by Prof. Upendra
\nBaxi of\t the Delhi  University at  a recent  seminar may  be
\nexcerpted:\n<\/p>\n
\t  “…law  making   remains  the,   more  or   less,
\n     exclusive\tprerogative  of\t a  small  cross-section  of
\n     elites. This  necessarily affects\tboth the  quality of
\n     the  law\tmade  as  well\tits  special  communication,
\n     acceptance and  effectivity.  It  also  reinforces\t the
\n     highly centralised\t system of power. It is time that we
\n     considered the desirability and feasibility of building
\n     into the  law-making processes  a substantial amount of
\n     public participation.”\n<\/p><\/blockquote>\n
871<\/span><\/p>\n
\t  “People’s participation  in  the  enforcement\t and
\n     implementation of\tthe law is also not actively sought,
\n     sponsored or  structured by the State….Equally now is
\n     the idea that there should be a “social audit” of major
\n     legislations by  the beneficiaries\t or, more generally,
\n     the consumers of legal justice.”\n<\/p><\/blockquote>\n
\t  “…The   situation\tin   regard   to   delegated
\n     legislation the  volume of\t which is  immensely greater
\n     than that\tof usual legislation, is even more alarming.
\n     The Indian\t Parliament enacted  from the period 1973 to
\n     1977 a  total of  302 laws;  as against  this the total
\n     number of statutory orders and rules passed in the same
\n     period was\t approximately 25,414. Corresponding figures
\n     for States and union territories are not just available
\n     but the  number of\t rules issued  under  the  delegated
\n     legislation powers may well be astronomical……”<\/p><\/blockquote>\n
     Plenary powers  of law-making  are entrusted to elected
\nrepresentatives. But  the political government instructed by
\nthe bureaucracy,  by and  large, gets bills through with the
\naid of\tthe three-line whip. Even otherwise, legislators are
\nsome  times   innocent\tof   legal   skills;   and   complex
\nlegislations   call   for   considerable   information\t and
\ninstruction.  The   law-making\tsequence   leaves  much\t  to
\nsubordinate legislation\t which, in  practical  terms,  means
\nsurrender to  the surrogate,  viz.,  the  bureaucracy  which
\noccupies commanding  heights  within  the  Secretariat.\t The
\ntechnocracy  and   the\tbureaucracy   which   mostly   draft
\nsubordinate legislation\t are perhaps  well-meaning and well-
\ninformed but  insulated from  parliamentary audit,  isolated
\nfrom popular pressure and paper-logged most of the time. And
\nunits of  local self-government\t are reduced to a para-babel
\nmechanisms, what  with a  pyramid of officialdom above them.
\nThe core  of Shri  Tarkunde’s argument, even though rejected
\nin legal terms by force of precedents, has a realistic touch
\nto the effect that municipal administration in the matter of
\ntaxation, if  taken over  by Government as under s. 90(5) of
\nthe  Act,  becomes  administration  by\tthe  barrel  of\t the
\nSecretariat pen.  The doctrine of delegation, in its extreme
\npositions, is  fraught with democracy by proxy of a coterie,
\nof which  the nation,  in its  naivete,\t may  not  be  fully
\ncognizant.\n<\/p>\n
     Therefore, the  system of\tlaw-making  and\t performance
\nauditing needs\tcareful,  yet  radical,\t re-structuring,  if
\nparticipative, pluralist  Government by the People is not to
\nbe jettisoned.\tWe have\t laid down  the law  and obeyed\t the
\nprecedents but\tfelt it\t necessary to  lay bare\t briefly the
\npolitical portents implicit in the extent law, for action by
\nthe national  leadership  betimes.  Who\t owns  and  operates
\nIndia,\tthat  is  Bharat  ?  That  disturbing  interrogation
\nbecomes deeply relevant
\n872<\/span>
\nas we  debate and  decide the jurisprudence of delegation of
\npower and  vicarious exercise  and  so\twe  have  pardonably
\nventured  to   make  heuristic\thints  and  to\tproject\t new
\nperspectives.\n<\/p>\n
     The journey’s  end is in sight. The discussion has come
\nto a  close. The notification suffers from no infirmity. The
\nwrit petitions\tstand dismissed.  Costs\t one  set.  (to\t the
\nstate)
\nP.H.P.\t\t\t\t\tPetitions dismissed.\n<\/p>\n
873<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Avinder Singh Etc vs State Of Punjab & Anr. Etc on 19 September, 1978 Equivalent citations: 1979 AIR 321, 1979 SCR (1) 845 Author: V Krishnaiyer Bench: Krishnaiyer, V.R. PETITIONER: AVINDER SINGH ETC. Vs. RESPONDENT: STATE OF PUNJAB & ANR. ETC. DATE OF JUDGMENT19\/09\/1978 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. DESAI, […]<\/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":[30],"tags":[],"class_list":["post-6823","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAvinder Singh Etc vs State Of Punjab & Anr. 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