RAMESH BIRCH & ORS. ETC. v. UNION OF INDIA & ORS. ETC.

- ').- judges. All of them agreed that it could not be so extensive as to A amount to "abdication" or "effacement". Some thought that there is no abdication or effacement unless it is total i.e. unless Parliament surrenders its powers in favour of a "parallel" legislature. or loses control over the local authority to such an extent as to be unable to revoke the powers given to, or to exercise effective supervision over, the body entrusted therewith. But others were of opinion that such B --\ "abdication" or "effacement" could not even be partial and it would ,. 'f be bad if full powers to do everything that the legislature can do are · conferred on a subordinate authority, although the legislature may .. retain the power to control the action of such authority by recalling such power or repealing the Acts passed by the subordinate authority. A different way in which the second of the above views has been enunciated-and it is this view which has dominated since-is by say- c k ing that the legislatures cannot wash their hands off their essential legislative function. Essential legislative function consists in laying down the legislative policy with sufficient clearness and in enunciating the standards which are to be enacted into a rule of law. This cannot be delegated. What can be delegated is only the task of subordinate legis- D lation which is by its very nature ancillary to the statute which dele- gates the power to make it and which must be within the policy and framework of the guidance provided by the legislature.

It is suggested for the petitioners that, since the reasonings of the learned Judges are so different, we cannot derive any assistance from E the Delhi Laws Act case and should therefore ignore it. We are unable

- to accept this suggestion. We think, with respect, that Bose J. was right when he pointed out in Rajnarain Singh's case (1955 1 SCR 298) and hinummary in the case, of the conclusions arrived at in the Delhi Laws Act case has consistently been referred to with ·approval in later ...,( decisions of this Court as an authoritative exposition-that: F ··~ "Because of the elaborate care with which every aspect of the problem was examined in that case, the decision has tended to become diffuse, but if one concentrates on the matters actually decided and forgets for a moment the reasons given, a plain pattern emerges leaving only a nar- G row margin of doubt for future dispute."

If we apply this formula, whatever reasoning one adopts, the answer to the question posed before us has to be in favour of upholding the constitutional validity of s. 87. One may doubt the wisdom of attempt- ing to trace a common ratio decidendi from such divergent views but it H

670 SUPREME COURT REPORTS [1989] 2 S.C.R.

seems equally illogical to altogether ignore a clear conclusion arrived '..{ - A at by the majority of judges only because they arrived at that conclu- ·sion by different processes of reasoning. One would rather have thought that a conclusion stands more fortified when it can be sup- ported not on one but on several lines of reasoning. At least for an identical problem, the final answer, we think, should be the same. This B should particularly be so when we remind ourselves that the Delhi \ Laws Act case arose because, soon after India became a Republic, the ,,.._ Government, envisaging the necessity of having recourse to legislation ,. • of this type in the context of the changing topography of India, took the precaution of seeking the advice of the Supreme Court for its 1 future guidance and that they have acted upon the answers pn •poun- ded by the Supreme Court in enacting a provision of this type. !In this c situation we find ourselves unable to accept the contention that, after a lapse of thirty-eight years, we should declare that the Delhi La.I vs Act ~ case decided nothing or, as counsel euphimistically put it, Ith at it should be confined to its own facts.

D It is contended that the above line of approach is one of expe- diency rather than logic and that, unless one can extract a principle of general application from the Delhi Laws Act case, it will not be helpful as a-precedent. Even if this is taken to be the proper approach, an answer to the contention is furnished by Shama Rao [1955] 2 SCR 650, on which considerable reliance was also placed on behalf of the petitioners. The facts in that case were that the legislative assembly tor tile Union Territory of Pondicherry passed a Sales Tax Act (1(} of 1965) in June, '1965. Under s 1(2) of the Act, it ·was to come into force on such date as the Pondicherry Government may. by notification, appoint. S. 2(1) of the Act provided that the Ma,dras General Sales - Tax Act, 1959 as in force In ihe State of Madras immediately before the commencement of the Pondicherry Act, shall be extended to Pondi- cherry subject to certain modifications. The Pondicherry Government issued a notification on March 1, 1966 appointed April 1, 1966 as the date of the commencement of the Pondicherry Act. Prior to the issue of the notification, however, the Madras Legislature had amended the Madras Act and consequently it was the Madras Act as amended upto G April 1, 1966, which was brought into force in Pon di cherry. When the Act thus came into fqrce, the petitioner was served with a notice to register himself as a dealer and thereupon he filed a writ petition challenging the validity of the Act. It was contenddd for the petitioner that the Act was void and was a still-born legislati~n by reason of the Pondicherry Legislature having abdicated its legislative functions in favour of the Madras State Legislature. It was argued that such abdica-

RAMESH BIRCH v. U.0.I. [RANGANAlHAN, J.] 671

- ~ lion resulted from the wholesale adoption of the Madras Act as in force in the State of Madras immediately before the commencement of the Pondicherry Act, ass. 2(1) read withs. 1(2) meant that the legisla- ture adopted not only the Madras Act as it was when it enacted the Pondicherry Act but also such amendment or amendments in the Madras Act which might be passed by the Madras State Legislature ~ upto the time of commencement of the Act i,e. upto April 1, 1966. On B

,. ' the other hand, counsel for the respondent relied on the decision of a ·majority of judges (5:2) in the Delhi Laws Act case "that authorisation to select and apply future Provincial Laws was not invalid" as had been - clearly brought out in the summary of the Delhi Laws Act Case attempted by Bose J. in Rajnarain Singh's case, [1955] 1 SCR 290. After a brief reference to the history of the doctrine of abdication ~ contended for by the petitioner and a discussion of the Delhi Laws Act c Case, Shela! J., with whom Subba Rao, CJ. and Mitter J. agreed, accepted the contention of the petitioner. He observed:

"The question then is whether-in extending the Madras Act in the manner and to the extent it did under sec. 2(1) of the D l;'rincipal Act the Pondicherry legislature abdicated its legislative power in favour of the Madras legislature. It is manifest that the Assembly refused to perform its legisla- tive function entrusted under the Act constituting it. It may be that a mere refusal may not amount to abdication if the legislature instead of going through the full formality of E

- legislation applies its mind to an existing statute enacted by another legislature for another jurisdiction, adopts such an Act .and enacts to extend it to the territory under its juris- . diction. In doing so, it may perhaps be said that it has laid down a policy to extend such an Act and directs the execu- tive to apply and implement such an Act. But when it not F only adopts such an Act but also provides that the Act applicable to its territory shall be the Act amended in future by the other legislature, there is nothing for it to predicate what the amended Act would be. Such a case would be clearly one of non-application of mind and one of refusal to discharge the function entrusted to it by the in- G ;;trument constituting it. It is difficult to see how such a case is not one of abdication or .effacement in favour of another legislature at least in regard to that particular matter.

But Mr. Setalvad contended that the validity of such legis- lation has been accepted· in Delhi Laws Act's case and H

672 SUPREME COURT REPORTS [1989] 2 S.C.R.

particularly in the matter of heading No. 4 as summarised -..I, - A by Bose J. in Raj Narain Singh's case. In respect of that heading, the majority conclusion no doubt was that autho- risation in favour of the executive to adopt laws passed by another legislature or legislatures including future laws would not be invalid. So far as that conclusion goes Mr. B Setalvad is right. But as already stated, in arriving at that ~ conclusion each learned Judge adopted a different reason- ' • ing. Whereas Patanjali Sastri and Das JJ. accepted the con- . tention that the plenary legislative power includes power of delegation and held that since such a power means that the legislature can make laws in the manner it liked if it dele- - gates that power short of an abdication there can be no c objection. On the other hand, Fazal Ali J. upheld the laws ~ on the ground that they contained a complete and precise policy and the legislation being thus conditional the ques- tion of excessive delegation did not arise. Mukherjea J. held that abdication need not be total but can be partial D and even in respect of a particular matter and if so the impugned legislation would be bad. Bose J. expressed in frank language his displeasure at such legislation but accepted its validity on the ground of practice recognised ""< over since Burah's case and thought that that practice was accepted by the Constitution makers and incorporated in

- E the concept of legislative function. There was thus no unanimity as regards the principles upon which those laws were upheld.

All of them however appear to agree on one principle, viz., that where there is abdication of effacement the legislature A- F concerned in truth and in fact acts contrary to the Instrument which constituted it and the statute in question would be void ~ and still born." (Underlining ours)

Bhargava, J. (with whom Shah J. agreed) did not consider it necessary G to enter into this controversy as, according to them-and on this they ·)"- dissented from the majority-even if it be held that the Pondicherry Act was bad for excessive delegation of powers when it was enacted and published, a subsequent amending Act of the Pondicherry Legisla- ture had remedied the situation.

H Sri Sibal contended that the Pondicherry Assembly, on a true

RAMESH BIRCH v. U.0.1. [RANGANATIIAN, J.] 673

-').. construction of s. 18 of the Government of Union Territories Act, 1963 was.not a full fledged legislature but only a delegate of Parliament and, A therefore, a delegation by it to the State Government amounted, in effect, to a sub-delegation which cannot be justified at all and that, therefore, Shama Rao is distinguishable. We do not think this conten- tion is tenable in view of the observations made in Burha's case, [1878] ~ 5 IA 178 and in the Delhi Laws Act case (supra) while repelling a B ;. .,similar contention about the status of a Dominion Legislature vis-a-vis .the Parliament of the United Kingdom, and in the Delhi Laws Act case. Also that was not the basis on which Shama Rao was either - argued before, or decided by, this Court. We may, therefore, tum·to Shama Rao's interpretation of the Delhi Laws Act case and apply it here. We think we may accept the passage in Shela! J's judgment X which we have underlined earlier as a correct enunciation by this c · Court of the Principle emerging from the Delhi Laws Act case; if we do so the only question that will remain to be considered will be whether s. 87 is a case of "abdication or effacement" and the answer to that question has been furnished, in the negative, by the Delhi Laws Act case itself in respect of identically worded provisions. Thus, Shama D Rao, in effect, helps the respondents to sustain the validity of s. 87, though it is true that, on a different, if somewhat analogous, provision ._. in the Pondicherry Act, their Lordships reached the contrary conclu- r sion and held there was an "abdication or effacement."

- But, these niceties apart, we think that s. 87 is quite valid even E on the "policy and guideline" theory if one has proper regard to the context of the Act and the object and purpose sought to be achieved by s. 87 of the Act. The judicial decisions referred to above make it clear that it is not necessary that the legislature should "dot all the i's and cross all the t's" of its policy. It is sufficient if it gives the broadest indication of a general policy of the legislature. If we bear this in mind F ~ and have regard to the history of this type of legislation, there will be no difficulty at all. Section 87, like the provisions of Acts I, II and III, is a provision necessitated by changes resulting in territories coming under the legislative jurisdiction of the Centre. These are territories situated in the midst of contiguous territories which have a proper legislature. They are small territories falling under the legislature -( jurisdiction of Parliament which has hardly sufficient time to look after G the details of all their legislative needs and requirements. To require or expect Parliament to legislate for them will entail a disproportionate pressure on its legislative schedule. It will also mean the unnecessary utilisation of the time of a large number of members of Parliament for, except the few (less than ten) members returned to Parliament from H

674 SUPREME COURT REPORTS [1989] 2 S.C.R.

the Union Territory, none else is likely to be interested in such legisla- ""{ - A tion. In such a situation, the most convenient course of legislating for them is the adaptation, by extension, of laws in force in other areas of the country. As Fazal Ali J. pointed out in the Delhi Laws Act case, it is not a power to make laws that is delegated but only a power to "transplant" 'laws already in force after having undergone scrutiny by a Parliament or one of the State Legislatures, and that too, without any )..___ material change. There is no dispute before us-and it has been unani- , mously he.Id in all the decisions-that the power to make modifications :t' " and restrictions in a clause of this type is a very limited power, which permits only changes that the different context requires and that ,. changes in substance. There is certainly no power of modification by way of repeal or amendment as is available under s. 89. c ~. Sri Swamp contends that the vice in the provision lies (a) in the choice it has left to the Central Government of one among several laws that may be in force in various areas and (b) in the power it has given to extend future laws as well. A power to exercise such wide power, he D says, cannot be described as a ministerial power; it is essential legisla- tive power, according to him. It is true that if one were to read the section in the abstract and in its broadest connotation, it conjures up the possibilities of the executive picking up at its fancy at any time any law that may exist in any part of India for extension to Chandigarh "'( without any particular rhyme or reason. The force of Sri Swamp's E objection on this aspect has been picturesquely brought out by Maha- jan J. in a passage in the Delhi Laws Act case:

"The choice to select any enactment in force in any pro- - vince at the date of such notification clearly shows that the legislature declared no principles or policies as regards the . k law to be· made .on any suhject. It may be pointed out that under the Act of 1935 different provinces had the exclusive ~ power of laying do\\-11 their policies in respect of subjects within their own legislative field. What policy was to be adopted for Delhi, whether that adopted in the province of Punjab or of Bombay, was left to the Central Government. Illustratively, the mischief of such law-making may be ')-- pointed out with reference to what happened in pursuance of this section in Ajmer-Marwara. The Bombay Agricul- tural Debtors' Relief Act, 1947, has been extended under cover of this section to Ajmer-Marwara and under the power of modification, by amending the definition of the word 'debtor' the whole policy of the Bombay Act has been

RAMESH BIRCH v. U.0.1. [RANGANATHAN, J.) 675

altered. Under the Bombay Act a person is a debtor who is indebted and whose annual income from sources other than agricultural and manly labour does not exceed 33 per cent . of his total annual income or does not exceed Rs.500, whichever is greater. In the modified statute "debtor" means an agriculturist who owes a debt, and "agriculturist" means a person who earns his livelihood by agriculture and whose income from such source exceeds 66 per cent of his total income. The outside limit of Rs.500 is removed. The exercise of this power amounts to making a new law by a body which was not in the contemplation of the Constitu- tion and was not authorized to enact any laws. Shortly stated, the question is, could the Indian legislature under the Act of 1935 enact that the executive could extend to c Delhi laws that may be made hereinafter by a legislature in Timbuctoo or Soviet Russia with modifications. The answer would be in the negative because the policy of those laws could never be determined by the law making body entrusted with making laws for Delhi. The Provincial legis- b latures in India under the Constitution Act of 1935 qua Delhi constitutionally stood on no better footing than the legislatures of Timbuctoo and Soviet Russia though · geographically and politically they were in a different situatiOn. '' E

- But, with respect, we think, we should not look at the provision in the present context from that angle. We should here have regard to the object of the provision and the purpose it was intended to achieve and, in the historical perspective we have set out, there is no vice in the power conferred. F So far as the first aspect referred by Sri Swarup is concerned, the provision only confers a power on the executive to determine, having regard to the local conditions prevalent in the Union Territory, which one of several laws, all approved by one or the other of the legislatures in the country, will be the most suited to Chandigarh. Thus viewed, it would fall under one of the permissible categories of delegation refer- G red to at p. 814 in the Delhi Laws Act case and extracted by us earlier and, if so, it is not really an unguided or arbitrary power. There could have been no objection to the legislation if it had provided that the laws of one of the contiguous States (say Punjab) should be extended to Chandigarh. But such a provision would have been totally inade- quate to meet the situation for two reasons. There may be more than H

676 SUPREME COURT REPORTS [1989] 2 S.C.R.

A one law in force on a subject in the contiguous States-say one in ---+- Punjab, one in Pepsu and one in Himachal Pradesh etc.-and Parlia- ment was anxious that Chandigarh should have the benefit of that one uf them which would most adequately meet the needs of the situation in that territory. Or, again, there may be no existing law on a particu- lar subject in any of the contiguous areas which is why the power had B to include the power of extending the laws of any State in India. While, in a very strict sense, this may involve a choice, it is in fact and in the general run of cases, only a decision on suitability for adaptation rather than choice of a policy. It is a delegation, not of policy, but of , .. _'.>..-

matters of detail for a meticulous appraisal of which Parliament has no ~

time. Even if we assume that this involves a choice of policy, the restriction of such policy to one that is approved by Parliament or a c State Legislature constitutes a sufficient declaration of guideline within the meaning, of the "policy-guideline" theory. ~

The second aspect referred to by Sri Swarup, again, is, in the context, not a sign of "abdication" but is only a necessary enabling power. Once 11 is held that the delegation of a power to extend a present existing law is justified, a power to extend future laws is a necessary corollary. Here again, its validity may be tested by consider- ing what the position would have been if the section had provided only for the extension of the laws in a contiguous territory, say Punjab. As ..... mentioned earlier, a power to extend existing statutes in Punjab could clearly have been delegated. If Parliament formulated such a policy as it had no time to apply its mind to the existing law initially to be adapted, it could hardly find time to consider the amendments from time to time en grafted on it in the state of its origin. Hence once a policy of extension of Punjab laws is clear and permissible it would - seem only natural as a necessary corollary that the executive should be k F permitted to extend future amendments to those laws as well. The power to extend any future law has to be considered in the above ~- context and not only could be, but also has to be, conferred for the same reasons as justify the conferment of a power to extend a present contiguous law. Mukherjea J. in the Delhi Laws Act case has touched upon this issue. As pointed out by him, the question of validity of the G delegation of a power to extend any future law, is not free from diffi- ')--- culty. If the provision is considered in the abstract and contrued on the basis of its fullest possible ambit, it.may be difficult to sustain it. But if it is construed and judged in the historical context of the legislation, the needs of the situation and a reasonably practical appraisal of the extent of its intended application, there can be no doubt that it con- H tains a sufficient indication of broad policy to sustain the validity of the

RAMESH BIRCH v. U.0.1. [RANGANATHAN, J.] 677

extent of deleg·ation involved ins. 87. We may, in this context, repeat again that coUJrts, in the decided cases, do not envisage a meticulous enunciation of a policy in all its details. They are satisfied even if they can discern ev1en faint glimmerings of one from the object and scheme of the legislation.

For the neasons discussed above, we reject the contentions of the petitioners challenging the constitutional validity of s. 87.

We now turn to the second contention of the petitioners based on . the assumption of s. 87 being valid. The point made is thats. 87, on its proper constructi<;m, permits the extension of the laws of another State to Chandigarh orily so long as there is a 'vacuum" of laws, on any particular subject, within the Union Territory but that, once Parlia- C ment itself steps in and makes laws for the territory, it has assumed legislative responsibilities in respect of that subject and a "transplanta- tion" of laws from elsewhere by extension is neither necessary nor valid, Sri Gujral submits that the raison d'etre of s. 87 is that, as Parliament may not have enough time to attend to the legislative needs D of the new territory brought into its fold, it is necessary to provide a machinery by which some laws could enforced in the territory. But here, as early as 1974, Parliament applied its mind and legislated, in respect of landlord-tenant matters, for the Union Territory and having done this, it is for Parliament and Parliament alone to legislate on the subject thereafter. Indeed President issued an ordinance in 1976 and E Parliament also amended the law in 1982 in some other respects indi- cating that Parliament was in full seisin of the matter. This is one facet of the objection. The other facet is that, by purporting to extend, by an executive notification, the provisions of the 1985 Act to Chandigarh, what the Central Government has really done is to modify or amend an existing Parliamentary law (the 1974 Act) operating in the State F already. Conceding, for purposes of argument, that, had the 1949 Act been extended to Chandigarh in 1974 by a notification under s. 87, it might have been open to the Government, by another notification under s. 87, to extend the 1985 Act also to the Union Territory, counsel contends that it was impermissible to allow the Central Government to issue a notification under s. 87 which will have the G effect of amending or modifying a law of Parliament already in force in the territory. A notification could amend a notification but not a sta- tute, he says. In support of this part of the argument, counsel strongly relies on the decision, of a majority of Judges in the [)elhi Laws Act case, that the second part of s. 2 of Act III considered by them was ultra vires. He submits that, if even a specific provision in a law could H

678 SUPREME COURT REPORTS [1989] 2 S.C.R.

A not validly permit a notification of extension to amend or repeal exist- ing laws of the territory in question, a n@tification under s. 87 which advisedly omits any reference to such an enabling power (enacted in Act III and declared ultra vires by this court) could hardly be on a stronger footing. On this construction of s. 87, counsel contends, the notification dated 15.12.86 has exceeded the purview of s. 87 and is, B therefore ultra vires.

Turning, therefore, to the judgments in the Delhi Laws Act case J • on which counsel strongly relies in support of his contentions, we may

c observe at the outset that the judgments of Kania CJ. and Patanjali Sastri J. are not helpful, as according to Kania CJ, the power of dele- gation was altogether bad except in so far as it permitted an extension - of laws made by the Central Legislature and, according to Sastri J. extensive delegation of powers was valid. Fazal Ali J., in upholding its validity, observed thus in regard to the second part of s. 2 of Act III:

"I will now deal with section 2 of Part C States (Laws) Act, D 1950, in so far as it gives power to the Central Government to make a provision in the enactment extended under the Act for the repeal or amendment of any corresponding law which is for the time being applicable to the Part C State cohcerned. No doubt this power is a far-reaching and un- usual one, but, on a careful analysis, it will be found to be only a concomitant of the power of transplantation and modification. If a new law is to be made applicable, it may have to replace some existing law which may have become out of date or ceased to serve any useful purpose, and the agency which is apply the new law must be in a position to say that the old law would cease to apply. The nearest parallel that I can find tu this provision, is to be found in the Church of England Assembly (Powers) Act, 1919. By that Act, the Church Assembly is empowered to propose legislation touching matters concerning the Church of England, and the legislation proposed may extend to the repeal or amendment of Acts of Parliament including the Church Assembly Act itself. It should however be noticed that it is not until Parliament itself gives it legislative force on an affirmative address of each House that the measure is converted into legislation. There is thus no real analogy between that Act and the Act before us. However, the provision has to be upheld, because, though it goes to the farthest limits, it is difficult to hold that it was beyond the

RAMESH BIRCH v. U.0.1. IRANGANATIIAN, J.] 679

powers of a legislature which is supreme in its own field, and all we can say is what Lord Hewart said in Kind v. Minister of Health, [1927] 2 KB 229, namely, that the particular Act may be regarded as "indicating the high water-mark oflegislative provisions of this character," and that, unless the legislature acts with restraint, a stage may be ·reached when legislation may amount to abdication of legislative powers." ·

Mahajan J. had this to say:

- "For reasons given for answering questions 1 and 2 that the enactments mentioned therein are ultra vires the Constitu- C lion in the particulars stated, this question is also answered similarly. It might, however, be observed that in this case express power to repeal or amend laws already applicable in Part C States has been conferred on the Central Govern- ment. Power to repeal or amend laws is a power which can only be exercised by an authority that has the power to D enact laws. It is a power co-ordinate and co-extensive with the power of the legislature itself. In bestowing on the Central Government and clothing it with the same capacity as is possessed by the legislature itself the Parliament has acted unconstitutionally." E The observations of Mukherjea J. are very relevant from the point of counsel for the petitioners. His Lordship said:

"It will be noticed that the powers conferred by this section upon the Central Government are far in excess of those conferred by the other two legislative provisions, at least.in accordance with the interpretation which I have attempted to put upon them. As has been stated already, it is quite an intelligible policy that so long as a proper legislative machinery is not set up in a particular area, the Parliament might' empower an executive authority to introduce laws validly passed by a competent legislature and actually in force in other parts of the country to such area, with such modifications and restrictions as the authority thinks proper, the modifications being limited to local adjust- ments' or changes of a minor character. But this pre- supposes that there is no existing law on that particular subject actually in force in that territory. If any such law H

680 SUPREME COURT REPORTS [1989] 2 S.C.R.

exists and power is given to repeal or abrogate such laws either in whole or in part and substitute in place of the same other laws which are in force in other areas, it would certainly amount to an unw:arrantable delegation of legisla- tive powers. To repeal or :abrogate an existing laws is the exercise of an essential legislative power, and the policy behind such acts must be the policy of the legislature itself. If the legislature invests the executive with the power to determine as to which of the law>; in force in a particular J territory are useful or proper and if it is given to that authority to replace any of them by laws brought from other provinces with such modification as it thinks proper. that would be to invest the executiv.e with the determina- - c tion of the entire legislative policy and not merely of carry- ing out a policy which the legislature has already laid down. Thus the power of extension which is contemplated by section 2 of Part C States (Laws) Act, includes the power of introducing laws which may be in actual conflict with the laws validly established and already in operation in that ter- ritory. This shows how -the practice, which was adopted during the early British period as an exp.edient and possibly harmless measure with the object of providing laws for a newly acquired territory or backward area till it grew up into a full fledged administrative and political unit, is being resorted to in later times for no other purpose that that of vesting almost unrestricted legislative powers with regard to certain areas in the executive government. The execu- tive government is given the authority to alter, repeal or amend any laws in existence in that areas under the guise of bringing in laws there which are valid in other parts of F India. This, in my opinion, is an unwarramtable delegation of legislative duties and cannot be permitted. The last por- tion of section 2 of Part C States (Laws) Act, is therefore, ultra vires the powers of the Parliament acs being a delega- tion of essential legislative powers in favour of a body not competent to exercise it and to that extent the legislation G must be held to be void. This portion is however severable; and so the entire section need not be decla:red invalid." (:Emphasis added) Bose J., again, made certain observations which arce strongly relied upon by counsel. His Lordship observed: H "I see no reason for extending the scope of legi.slative delegation

RAMESH BIRCH v. U.0.I. [RANGANATIIAN, J.] 681 beyond the confines which have been hallowed for so long. Had it not been for the fact that this sort of practice was blessed by A the Privy Council as far back as 1878 and has been endorsed in a .,_,. ..;,' of decisions ever since, and had it not been for the practi- cal necessities of the case, I would have held all three Acts ultra vires. But, so far as the latter portion of the third Act is con- cerned, no case was cited in which the right to repeal the existing laws of the land and substitute others for them has been upheld. B That was tried in a South African case, Sir John Gorden Sprigg. . v. Sigcau, !1897] AC 238, but the PriV'J Council held it coulg not be done, not indeed on any ground which is material here but that is the only case I know where the attempt was made and the right litigated. It is one think to Jill a void or partial vacuum. Quite another to throw out existing laws enacted by a competent authority. It is bad enough to my mind to hold that the firSt is not C a delegation of legislative power. But as that has been held by an authority which it is impossible now to question so far as the past is concerned, I bow to its wisdom. But as to the future, I feel that a body which has been entrusted with the powers of legisla- tion should legislate and not leave the decision of important matters of principle to other minds. I am therefore of opinion D that the power upheld by the The Queen v. Burah does not extend as far as the latter portion of section 2 of the Part C States (Laws) Act of 1950 endeavours to carry it." (Emphasis added) ~ . In support of his "vacuum" theory, counsel also refers to an ins- tance of legislative practice referred to in Kapoor's case [1989] 1 S.C.C. E

561. Counsel points out there was a central rent law applicable t9 all can- tonments in India, being Act 10 of 1952. In 1957, Parliament decided that the rent law in force in the rest of a State should be allowed to be exten- ded to the cantonment areas in Stllte as well by issue of Government noti- e--.r. fication, and enacted Act 46 of 1957 for the purpose. However, no such --.: extension under s. 3 of the Act 46 of 1957 was notified for the State of U.P. until Parliament, by passing Act 68 of 1971, statutorily clarified that: F "On and from the date on which the United Provinces (fempo- rary) Control of Rent & Eviction Act, 1947, is extended by notification under section 3 of the Cantonments (Extention of Rent Control Laws) Act, 1957 to the Cantonments in Uttar Pradesh, the Uttllr Pradesh Cantonments (Control of Rent & Eviction) Act 1952 (Act 10 of 1952) shall stand repealed." G ?>,:- In other words, though extension of local laws to cantonments by notifica· tion was allowed, Parliament provided for the simultaneous creation of a "vacuum" in the cantonment area by repeal of the 1952 Act which could ·be occupied by the extended law. Counsel emphasises this aspect to show that an extension by notification can be allowed to fill a void but cannot be allowed to knock against a superior Parliamentary enactment already in existence.

682 SUPREME COURT REPORTS [1989] 2 S.C.R.

There is certainly a good deal of force in these arguments but we think that they proceed on an incorrect view of the effect of the notifi- cation impugned in the present case. We might have .been inclined to accept the submissions of the learned counsel had the effect of the notification been to extend a law which is in "actual conflict" with any parliamentary enactment or which has the effect of "throwing out" B any existing law in the Union Territory. To borrow an expression used in an analogous context, we would have considered the validity of the extension doubtful had the extended provisions been repugnant to an Ill Act of Parliament in force in the Union Territory. So long as that is not the effect or result, we think, there is no reason to construe the scope of s. 87 in the restricted manner suggested by counsel. It is no doubt true that s. 87 permits an extension because there is no law in the C Union Territory in relation to a particular subject and Parliament has - not the requisite time to attend to the matter because of its preoccupa- tions. But this purpose does not require for its validity that there should be no existing law of Parliament at all on a subject. Again the concept of "subject" for the purposes of this argument is also an elastic one the precise scope of which cannot be defined. The concept of vacuum is as much relevant to a case where there is absence of a particular provision in an existing law as to a case where there is no existing law at all in the Union Territory on a subject. For instance, if Parliament had not enacted the 1974 Act but had only enacted an extension of the Transfer of Property Act to Chandigarh, could it have been said that a subsequent notification cannot extend the provisions of the 1949 Act to Chandigarh because the subject of leases is gover- ned by the Transfer of Property Act which has been already extended • and there is, therefore, no "vacuum" left which could be filled in by such extension? Again, suppose, initially, a Rent Act is extended by Parliament which does no: contain a provision regarding one of the grounds on which a landlord can seek eviction-say, one enabling the owner to get back his honse for reoccupation-and then the Govern- ment thinks that another enactment containing such a provision may also be extended, can it not be plausibly said that the latter is a matter on which there is no legislation enacted in the territory and that the extension of the latter enactment only fills up a void or vacancy? G Again, suppose the provisions of a general code like, say, the Code of Civil Procedure are extended to the Union Territory, should be con- strue s. 87 so as to preclude the extension ·of a later amendment to=e of the rules to one of the Orders of the C.P.C. merely on the ground that it will have the effect of varying or amending an existing law? We think it would not be correct to thus unduly rcst.."""ict the """l'e <>f a H provision likes. 87. The better way to put the principle, we think, is to

RAMESH BIRCH v. U.0.1. iRANGANATIIAN, J.l 683

--~ say .that the extension of an enactment which makes additions to the A existing law would also be permissible under s. 87 so long as it does not, expressly or impliedly, repeal or conflict with, or is not repugnant to, an already existing law. In this context, reference can usefully be made to the observations in. Hari Shanker Bag/a (1955] 1 SCR 380 at 391, which seem to countenance the "by-passing" of an existing law by, B a piece of delegated legislation and to draw the line only at its attempt to repeal the existing law, expressly or by necessary implication. In a 't sense, no doubt, any addition, however small, does amend or vary the existing law but so long as it does not really detract from or conflict • with it, there is no reason why it should not stand alongside the exist- ing law. In our view s. 87 should be interpreted constructively so as to permit ils object being achieved rather than in a manner that will C detract from its efficacy or purpose. We may also note, incidentally, that in legislative practice also, such successive changes have been allowed to stand together. Lachmi Namin v. Union of India, (1976] 2 ·scR 785 narrates how the Bengal Finance (Sales Tax) Act, 1941 extended to Delhi under Act III was subsequently amended by D Parliament Acts of 1956 and 1959 but was also sought to be modified by various notifications from time to time. These notifications were challenged on the ground that the power to extend by notification could be exercised only once and that the impugned notification did not merely extend but also effected modifications of a substantial nature in the Act sought to be extended. No contention was, however, raised that after the intervention of Parliament in ·1956 and 1959 there could have been no extension of the Bengal Act as it wo.uld have the effect of adding to or varying the Parliamentary legislation apparently because they could stand side by side with each other. We, therefore, think that since the extension of the 1985 Act only adds provisions in respect of aspects not covered by the 1974 Act and in a manner not inconsistent therewith, the impugned, notification is quite valid and not liable to be struck down.

We may now briefly dispose of certain minor aspects of the above contentions which were debated before us: G l. It was urged that the provisions of the 1985 Act extended to Chandigarh cannot stand independantly and make sense only if read along with and as supplementing the provisions of the 1949 Act already reenacted by the 1974 Act and, .therefore, amend or modify the 1974 Act- This is true but it does not affect our line of reasoning indicated above. H

684 SUPREME COURT REPORTS [1989] 2 S.C.R.

A 2 There was considerable argument before us as to whether -1- the modifications introduced by the 1985 Act in the 1949 Act, as reenacted by the 1974 Act, are minor "modifications or restrictions" or incorporate substantial changes in the scheme of the pre-existing law. Counsel for the petitioners contended that the changes intro- duced by the 1985 Act were substantial and far-reaching. On the other B · hand counsel for the respondent contended to the contrary. Sri Sehgal, >...._ appearing for one of the landlords submitted that the Act already contained provisions enabling any owner to get back his premises Ii • when he needed it for his occupation-S. 13(3)(a)(i) and (iv)-and a special provision enabling an Army Officer to expeditiously recover • possession of his premises when he needed it for his family--S. 13(3)(a)(i-a) and (c)-and that the provision sought to be introduced c by the 1985 Act was only a natural and logical extension_.thereof. Counsel for the landlord in SLP 9217 of 1988 submitted that it was only ~ a procedural change that the 1985 Act introduced, relying on certain observations made by this Court in Kewal Singh v. Lajwanti, [1980] 1 SCR 854. All this discussion is wholly irrelevant on our line of reason- D ing. As we have pointed out, in construing the scope of a law extended under s. 87 qua an existing law, the question is not whether there are changes or not, the question is only, are they inconsistent with, in conflict with or repugnant to, the scheme of the existing law and we have answered this question in the nagative. The question of "modifi- -.;:. cations or restrictions" will loom large only in construing the scope of the notification qua the law extended by it. In Lachmi Narain [1976] 2 SCR 785 (at p. 801-2) and other cases it has been held that such a notification, while extending a law, can make only such "modifications and restrictions" in the law extended as are of an incidental, ancillary or subservient nature and as do not involve substantial deviations therefrom. Here, it is common ground that the 1985 Act has been extended as it is, with only very minor modifications and, hence, it is unnecessary to consider the question debated.

3. The reference to the legislative precedent referred to in Kapoor's case does not help us to determine the issue in the present case. Sri Gujral pointed out that, in that case, Parliament considered it necessary to repeal an Act of Parliament ( 10 of 1952) and thus create a vacuum before providing for extension of a State law to the canton- ment. Central Act 10 of 1952 in that case, was a detailed enactment and the State law extended under s. 3 of the Act 46 of 1957 could not have stood alone with it. It was, therefore, decided by Parliament that the Central Act should stand repealed. Here, on the other hand, we have attempted to show that both sets of provisions can stand together

RAMESH BIRCH v. U.0.1. !RANGANATHAN, J.I 685

and effectively supplement 'each other. A Sri Swarup pointed out that, in Kapoor's case, the words "on the date of the notification'.' were omitted with retrospective effect. This also does not help the petitioners. For one thing, the omission of those words enlarges the power of notification and made possible the issue J of a notification to extend the State law along with its future amend- B ~ ments. But that apart, the words "on the date of the notification" are • ·• present in s. 87 and autliorise the extension of the law in force in Punjab, as on 15.12.1986, to Chandigarh.

- 4. There was some discussion before us on the basis of the obser- vations in Lachmi Narain & Ors. v. Union of India & Ors., [1976] 2 SCR 785, as to whether there could be successive notifications under C s. 87. But this question, which was answered in the affirmative in Kapoor's case (supra), does not arise here, as there is only one notifi- cation under s. 87.

5. Learned counsel submitted that the observations of the High D Court in para 17 and 26 of the judgment under appeal are not helpful as they refer to extension of laws made under the provisions of Acts I, II and III which had been held valid in the Delhi Laws Act case. This is ~ correct but, as we have pointed out earlier. s. 87 only continued the pattern of Acts I, II and III after being assured by the Supreme Court that there was nothing wrong with it. This is a relevant aspect which E has to be kept in mind in considering the issues before us.

6Copy pinpoint6. Learned counsel criticised the observations made by the High Court in para 27 of the judgment. The passage referred to seems to echo the observations made in certain decisions of this Court (vide, for e.g. Mukherjea CJ) in Rai Sahab Ram Jawaya Kapur v. State, [1955] 2 F SCR 225 at p. 237 and Hedge J. in Sitaram Bishamber Dayal, [1972] 2 SCR 141 at p. 143 cited, with apparent approval, in Roy v. Union, [1982] 2 SCR 272 at p. 317. They should not be understood as equating the exercise of legislative power by Parliament and the Executive.

7Copy pinpoint7. Both sides sought to take advantage of the history of the G legislation in this case. As stated earlier, the main contention of counsel for the petitioners was that, by enacting the 1974 Act and the 1982 Act, Parliament had filled in the "vacuum" which. could no longer be penetrated by extension of laws from other parts of the country on the subject. In addition they point out that the 1976 Ordi- nance making the amendments which are now being sought to be H

686 SUPREME COURT REPORTS (1989] 2 S.C.R.

A extended was allowed to lapse and that an incorporation of these amendments was not considered necessary when the 1982 Act was passed. These two circumstances show, according to them, that an extension of the provisions of the 1985 Act was contrary to the clear intention of Parliament. On the contrary, counsel for the State submit· ted that the passing of the 1974 Act and the promulgation of the B ordinance show that it was the policy of the Parliament to extend the provisions of the 1949 Act and, in particular, the provisions now ex· tended, to Chandigarh as well. He further submitted that the ordi· W nance could not be made into an Act because of the intervention of the emergency and that the omission to convert the ordinance into an Act and to insert the provisions of the ordinance into the 1982 Act really - C demonstrate how Parliament is unable to keep track of legislation necessary for a Union Territory. We do not wish to enter into this controversy for our present purposes as we do not think that any clear inference can be drawn one way or the other from these circumstances. It is also not necessary to consider these developments in the view we have taken that there can be no objection to extension of provisions which do not conflict with the existing law in the Union Territory.

8Copy pinpoint8. Sri Swamp raised a point that ifs. 87 is read as empowering the extension of any law at any time, s. 89 which prescribes a maximum time limit of two years within which to adapt existing laws for their 'i · application to Chandigarh would become redundant. This argument overlooks a very crucial difference between ss. 87 and 89. This is that, within the period of two years mentioned ins. 89, the Central Govern· ment can, while adapting pre-existing laws make any changes therein, including changes by way of repeal or amendment. But s. 87 though capable of enforcement indefinitely, confers a more limited power. It can be invoked only to extend laws already in existence to the Union •~ F Territory and cannot make any substantial changes therein. The power under s. 89 is limited in time but extensive in scope while under s. 87 •· the power is indefinite in point of duration but very much more restricted in its scope.

The above discussions dispose of all the contentions urged before G us. For the reasons set out, we are of opinion that the conclusion ~ arrived at by the Punjab and Haryana High Court was the correct one. All these petitions and appeals fail and are dismissed and the rules nisi discharged but, in the circumstances, we direct each party to bear his/its own costs.

H P.S.S. Appeals & petitions dismissed.