P L D 1965 (W (PLP)

(a) Legislature‑--Whether and to what extent competent to delegate its powers of legislation to outside agency. (b) The Legislature and the Executive are two vital organs in a democratic State. Each of these organs has its, own functions to perform. In theory at least a Legislature is not competent to delegate its legislative powers and functions to make laws. However, in a progressive State in modern times faced with ever increasing social and economic problems it is a stupendous task for the Legislature to make laws for its people. The task of the Legislature is getting more and more difficult in its nature. It often happens that the subject on which the Legislature is called upon to make its laws requires special skill and knowledge to work out the details. Again, the Legislature may riot be even fully conversant with the local and particular requirements necessary to draw up a complete and self‑contained code for the subject. In these circumstances it has become impracticable, if not impossible for the Legislature to make all the laws required of it single handed without any help from an outside agency or authority. The Legislature has thus found it expedient to delegate some of its less important functions to others subject to suitable limitations and restrictions. This delegation of powers by the Legislature has come to be recognised as a matter of legal necessity. The only question that is to be seen is the limits within which the Legislature can delegate its functions to an outside agency. It goes without saying that the Legislature cannot altogether abdicate its powers to the Executive and thus com pletely efface itself. It is the inalienable right and duty of the Legislature to formulate the laws and it is expected of the Legislature to at least lay down the policy and the broad scheme of the laws sought to be introduced. It has to provide the fundamentals, define its essential features, lay the foundation and basic structure for the laws sought to be introduced in the country and the relatively less important and secondary task to work out the details may be entrusted to others. However, in building up these details it must not be forgotten that the real' architect behind the law is always the Legislature itself and its will and policy must throughout be clearly discernible. The policy may be particularized in a few or as many words as the Legislature thinks proper, and it is enough if an intelligent guide is given to the subordinate authority. The Court can interfere if no policy is discernible at all or the delegation is of such an indefinite character as to amount to the abdication but as the discretion vests with the Legislature in determining whether there is necessity or not, the exercise of such discretion is not to be disturbed by the Court except in clear cases of abuse. The experiences of legislation require that in first instance there should be power in such Legislatures to pass what is called conditional legislation which is conditional upon the exercise of powers or a limited discretion given to some outside authority, for example, an executive officer of the Government. In case of a Legislature which is a sovereign Legislature there is power to permit others after declaring the policy to fill up details. It would be impossible otherwise for a Legislature to legislate efficiently. Where the Legislature has laid down a policy it is permissible to allow others to undertake subordinate legislation within the powers conferred. If the Legislature is competent, it can, for the purposes of local self‑Government, instead of levying the tax itself, confer that power upon the local authority. Cooly: "Constitutional Limitations", 7th Edn., p. 163; Halsbury : "Laws of England", 3rd Edn., Vol. 36, para., 723; Gujrat Punjab Bus Limited v. The Province of the Punjab and others P L D 1957 Lah. 345; Yakus v. United States‑ 321 u S 4N; Schechter v. United States (1939) 295 U S 495 Cantonment Board, Poona v. Western India Theatre Limited A I R 1954 Bom. 261 and Hira Bhai Asha Bhai Patel and others v. The State of Bombay and others A I R 1955 Bom. 185 ref. (b) Punjab Village Panchayat Act (X1 of 1939), S. 69 Provision enabling village Panchayats to impose taxes‑Not ultra vires. (c) Punjab Village Panchayat Act (XI of 1939), S. 19‑A [as amended by Punjab Village Panchayat (Amendment) Act (IX of 1953)], read with Punjab Municipal Act (III of 1911)‑Extension, by Government, of provisions of Punjab Municipal Act, 1911 to any Panchayat area‑Competent and not ultra vires. Raj Narain Singh v. Chairman, Patna Administration Committee, Patna and another A I R 1954 S C 567 distinguished. JUDGMENT MUHAMMAD AKRAM, J.‑

Dhudial is a village in the Chakwal Tehsil of Jhelum District. In pursuance to the provisions of subsection (1) of section 69 of the Punjab Village Panchayat Act, 1939, the Panchayat of Dhudial with the previous sanction of the Governor of the former Punjab imposed a cess on the entry of goods in the Panchayat area of village Dhudial for consump tion, use and sale therein at certain specified rates in accordance with Notification No. 984/53,6‑C and P/C published in the Punjab Government Gazette dated 13th of November 1952. Simultan eously in the exercise of the powers conferred by section 19‑A of the Punjab Village Panchayat Act, 1939, the Government of the then Punjab extended to the Panchayat area of Dhudial the provisions of sections 78, 82 and 83 of the Punjab Municipal Act, 1911 with certain suitable adaptations.

2. In this writ petition by Sher Muhammad under the Laws (Continuance in ‑Force) Order; 1958, the petitioner has called in question the imposition of this octroi cess on the entry of the goods in the Panchayat area of Dhudial for consumption, use and sale. The petitioner is an arhti who carries on his business in the Mandi at Dhudial and was authorised by local dealers and arhties to file this petition in a representative capacity. lie has attacked the above‑mentioned Notification on the ground that it was not permissible for the executive to majce or modify laws applicable to an area and to impose taxes. According to him it is the Legislature who alone is vested with these legislative, powers, and that the Legislature could not delegate its functions 'to the Executive. It is further contended that for the same reasons section 69 of the Village Panchayat Act, 1939 is ultra vires of the legislature also and the Government was not competent to extend the provisions of sections 78, 82 and 83 of the Punjab Municipal Act, 1911 tot he Panchayat area of Dhudial and thus make laws applicable to that area.

3. This writ petition was instituted on 21‑6‑1960, long after the impugned Notification has held the field eversince 13th of November 1953.

4. It may be mentioned in passing that under Article 4(1) of the Basic Democracies Order, 1959 (President's Order No. 18 of 1959), the Village Panchayat Act of 1939 was repealed but by virtue of the provisions of Article 4 (2) of the Order the effect of the impugned Notification had been saved with the result that the octrot cess imposed in the boundaries of Dhudial is still in force there. S. The Panchayat of Dhudial with the previous sanction of the Government of the Punjab imposed the cess on the entry of goods in the Panchayat area for the consumption, use and sale by virtue of the powers vested in it under subsection (1) of section 69 of the Punjab Village Panchayat Act, 1939. This section provides that a Panchayat may, with the previous sanction of the Government levy tax to which the Provincial Legislature has powers to impose in the Province under the Government of India Act, 1935. The question raised is: Was the Provincial Legislature competent to delegate its law‑making powers to a Panchayat?

6. This question directly springs from the doctrine of separation of powers of the Executive from the Legislature, two of the main organs in a democratic State. Each of these organs has its own functions to perform. In theory at least a Legislature. is not competent to delegate its legislative powers and functions to make laws. In this connection Cooly in his Constitutional Limitations (7th Edition on page (163) has stated as follows: "One of the settled maxim in Constitutional law is that‑the powers conferred upon the Legislature to make laws cannot be delegated by that Department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain, and by that constitutional agency alone the laws must be made until the Constitution itself is changed. The power to whose judgment, wisdom and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved 'nor can it substitute the judgment, wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign post."

7. However, in a progressive State in modern times faced with ever increasing social and economic problems it is a stupen dous task for the Legislature to make law's .for its people. The task of the Legislature is getting more and more difficult in its nature. It often happens that the subject on which the Legislature is called upon to make' its laws requires special skill and knowledge to work out the details. Again, the Legislature may not be even fully conversant with the local and particular requirements necessary to draw up a complete and self contained code for the subject. In these circumstances it has become impractic able, if not impossible for the Legislature to make all the laws required of it single handed 'without any help from an outside agency or authority. The Legislature has thus found it expedient to delegate some of its less important functions to other subject to suitable limitations and restrictions. This delegation of power by the Legislature has come to be recognised as a matter of legal necessity. On this subject Halsbury in his Laws of 'England (3rd Edition) in Volume 36, paragraph 723 has observed:‑ "Much of, it (delegated legislation) is made by executive authorities, the granting of powers to whom was long ago accepted by the Parliament as inevitable in cases of national emergency, where speedier remedies are called for than it is itself able to provide, since Parliament has neither the time nor, in all cases, sufficient expert knowledge itself to formulate all the matters of detail with which modern legislation must be concerned, has now come to be regarded as a day to day inevitability."

8. This being the case, the only question to be seen is the limits within which the Legislature can delegate its functions to an outside agency. It goes without saying that the Legislature cannot altogether abdicate its powers to the Executive and thus completely efface itself. It is the inalienable right and duty of the Legislature to formulate the laws for its subjects and it is expected of the Legislature to at least lay down the policy and the broad scheme of the laws sought to be introduced. It has to provide the a fundamentals, define its essential features, lay the foundation and basic structure for the laws sought to be introduced in the country and the relatively less important and secondary task to work out the details may be entrusted to others. However, in building up these details it must not be forgotten that the real architect behind the law is always the Legislature itself and its will an policy must throughout be clearly discernible.

9. It was observed in the Gujrat Punjab Bus Limited v. The Province of the Punjab and others (P L D 1957 Lah. 345) that "the limitations on the delegation of legislative powers to the executive are well known. If the policy and the frame‑work are provided in the Act by the Legislature and the details are to be filled in by the execu tive, there is no difficulty in the delegation of legislative powers. It is only in case v here the Legislature abdicates or effaces itself that the delegation is ultra vires. The tendency ‑in modern legislation is to leave more and more to the executive for the process of the legislation for the Legislature is cumbersome." In re; Article 143, Constitution of India, and Delhi Laws Act A I R 1951 S C 332 it was remarked by Mukerjea, J. that "the Legislature cannot part with its essential legislative function which consists in declaring its policy and making it a binding rule of conduct. A surrender of this e9sential function would amount to abdication of legislative powers in the eye of law. The policy may be particularized in a few or as many words as the Legislature thinks proper, and it is enough if an intelligent guide is given to the subordinate authority. The Court can interfere if no policy is discernible at all or the delegation is of such an indefinite character as to amount to the abdication, but as the discretion vests with the Legislature in determining whether there is necessity or not, the exercise of such discretion is not to be disturbed by the Court except in clear cases of abuse." in this connection the learned Judge has further observed that "delegation of legislative authority could be permissible but only as ancillary to, or in aid of, the exercise of law‑making power of the proper Legislature and not as a means to be used by the latter to relieve itself of its own responsibilities or essential duties by devolving the same on some other agent or machinery. A constitutional power may be held to imply power of delegation of authority which is necessary to effect its purpose; and to this extent the delegation of power may be taken to be implicit in the exercise of that power. But it is not open to the Legislature to efface itself of its essential functions and vest the same on an extraneous authority. The primary or essential duty of law‑making has got to be discharged by the Legislature itself; delegation mat be resorted to only as a secondary or an ancillary measure".

10. In Yakus v. United States (321 U S 414) decided by the Supreme Court in that country, the position with regard to the competency of the Congress to delegate its legislative powers to some other agency has been summed up as follows:‑ "The constitution as a continuously operative character of Government does not demand the impossible or the impracticable. 1t does not require that Congress find for itself every fact upon which it desires to base legislative action or that it make for itself detailed determinations which it has declared to be prerequisite to the application of the legislative policy to particular facts and circumstances impossible for Congress itself properly to investigate. The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct . . .These essentials are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, ascertained from relevant data by a designed administrative agency, it directs that its statutory command shall be effective. It is no objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework . . . . . Only if we could say that there is an absence of standards for the guidance of administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of the Congress has been obeyed, would we be justified in overriding the choice of means for effecting its declared purpose . . . "

11. In this very connection it has been remarked in Schechter v. United States ((1939) 295 U S 495). "So long as the policy is laid down and a standard established by a statute, no unconstitutional delegation of legislative powers is involved in leaving to select instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply."

12. Returning now to the case at hand, we find that the case in question was imposed in pursuance to the powers conferred on the Panchayat of Dhudial under subsection (A I R 1954 Bom. 261) of section 69 of the Punjab Village Panchayat Act, 1939. By this section the Provincial Legislature authorised the Village Panchayats to impose taxes within their respective areas. Under entry 13 of List 2 of the Government of India Act, 1935, the Provincial Legislature could, legislate in respect of "Local Government, that is to say in respect of constitution and powers of the Municipal Corpora tion, Improvement Trust, District Board, minor settlement authorities and other local authorities for the purpose of local self‑Government or village administration." There is no doubt that the imposition of the cess in the Panchayat area fall within the competence of the Provincial Legislature. On principle there is nothing wrong if the Legislature in the exercise of its discretion hands down this power vested in it to the local bodies under it to impose the tax within their respective areas. In such cases, the local authority when it imposes the tax within its area, merely acts upon the policy of the law laid down‑by the Legislature for it.

13. In Cantonment Board, Poona v. Western India Theatre Limited (1), the validity of the provisions of section 37, subsection (xv) of the Bombay Municipal Burrows Act, 1925 were examined in that case also the local body had been empowered to impose any tax which under the Government of India Act, 193‑5 the Provincial Legislature could impose in the Province. It was held that the tax levied by the local body under that section was intra vires and it was observed as under:‑‑‑ "The expediencies of legislation require that in the first instance there should be power in such Legislatures to pass what is called conditional legislation which is conditional upon the exercise of powers or a limited discretion given to some outside authority, for example, an executive officer of the Government. In India the Legislature had delegated consider able powers after laying down policy, to outside bodies enabling them to undertake legislation going by the name of subordinate legislation. In case of a Legislature which is a sovereign Legislature there is power to permit others after declaring the policy to fill up details. It would be impossible otherwise for a Legislature to legislate efficiently. Where the Legislature has laid down a policy it is permissible to allow others to undertake subordinate legislation within the power` conferred. Thus there is nothing in section 59 (1) (xi), Bombay District Municipal Act, 1901 which renders that section ultra vires of the Governor‑in‑Council because of legislative power having been delegated."

14. In Hira Bhai Asha Bhai Patel and others v. The State of Bombay and others (A I R 1955 Born. 185) the validity of some of the similar provisions of the Bombay Municipal Corporation Act authorizing the Municipal Corporation to impose taxes under that Act, came to be examined. In that connection the learned Judges have observed that: "if the Legislature is competent, it can, for the purposes of local self‑Government, instead of levying the tax itself, confer that power "upon the local authority."

15. From the above discussion it is clear that the Provincial Legislature could itself impose the tax in any Panchayat area and under section 69 of the Punjab Village Panchayat Act, 1939 it acted within its powers to delegate that functions to the Panchayats under it.

16. The learned counsel for the petitioner has still another objection to raise against 'the impugned notification. He has argued that the Governor of the former Punjab, was not competent to extend the provisions of sections 78, 82 and 83 of the Punjab Municipal Act, 1911 to the Panchayat area of Dhudial and thus change the laws applicable there. By virtue of section 4 of the Punjab Village Panchayat (Amendment) Act (IX of 1953), a new section 19‑A, was added to the Punjab Village Panchayat Act, 1939. Section 19‑A provides that the Government may by notification extend to any Panchayat area the provisions of any section of the Municipal Act, 1911 subject to such limitations and modifications, if any, as the Government may deem fit. In the exercise of this power under section 19‑A of the. Act, the Governor of the then Punjab extended to the Panchayat area of Dhudial the provisions , of sections 78, 82 and 83 of the Punjab Municipal Act, 1911 with certain adaptations which are .merely incidental in their nature.

17. Section 78 of the Municipal Act, 1911‑ (as adapted) provides that if animals or articles passing the octroi or terminal tax boundary of Panchayat area, are liable to the payment of octroi or terminal tax, then every person who, with the intention to defraud the Panchayat causes or abets the introduction of or himself introduces or attempts to introduce within the said octroi or terminal tax boundary any such animal or article upon which payment of the octroi or terminal tax due on such introduction has neither been made nor tendered, is punishable with fine which may extend either to 10 times the value of such octroi or terminal tax or to Rs. 50/00, whichever is greater. Section 82 of the Act (as adapted) makes certain provisions for the seizure of any article on which octroi or terminal tax is chargeable in case of evasion of the tax. Section 83 merely authorises the Panchayat to lease the right to the collection of the octroi or tax or toll for any period not exceeding one year. All these provisions of sections 78, 82 and 83 of the Municipal Act as extended to a Panchayat area do not effect any fundamental change in the policy of the law prevailing in the locality. The powers conferred by these sections are merely incidental in their nature. These have enabled the Panchayat to effectively administer the powers to impose the tax levied under section 69 (1) of the Village Panchayat Act, 1939, and to deal with certain consequential matters of no fundamental importance effectively. There is thus no force in any of the contentions raised by the learned counsel for the petitioner.

18. The learned counsel for the petitioner has relied on a decision by the Supreme Court of India reported in Raj Narain Singh v. Chairman, Patna Administration Committee, Patna and another (A I R 1954 S C 567). The facts of that case are altogether distinguishable. It was remarked in that case that "executive authority can be authorised to modify either the existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms and there was some divergence of opinion about this in the former case, but this much is clear from the opinion set out above that it cannot include a change of policy. It follows that when a section of an Act is selected for application whether it is modified or not, it must be done so as not to effect any change of policy or any essential change of the Act regarded as a whole". These observations go against the petitioner and are in keeping with the above discussion.

19. In the result, there is no force in this writ petition which is accordingly dismissed with costs. K. B. A. Petition dismissed.