A PROJECT REPORT

ON

“IN RE DELHI LAWS ACT, AIR 1951”

BBA-LLB 7th SEMESTER

Session – 2016-2021

Submitted to: Submitted By:

MS.NISHTHA SHRUTI SHARMA

ASSN PROFF REG NO:-46116210006

DECLARATION
I, Shruti Sharma student of SRM University ,Haryana; hereby declare that the project work
entitled is a record of an original work “IN RE DELHI LAWS ACT AIR 1951” submitted to the
Law Department is a record of an original work done by me under guidance of Ms. Nishtha.

I further declare that the work reported is this project has not been submitted and will not be
submitted, either in part or in full. This project work is my own work. The matter embodied in
this project report has not been submitted to any other University or Institution for the award of
degree. This project has not been presented in this manner earlier. This information is purely of
my academic interest.

SHRUTI SHARMA

BBA-LLB (7th Sem)

i
CERTIFICATE

This is to certify that Shruti Sharma of BBA-LLB of SRM University has successfully carried
out investigatory project “IN RE DELHI LAWS ACT AIR 1951”, under the supervision of Ms.
Nishtha.

All the works related to the project is done by the candidate herself. The approach towards the
subject has been sincere.

The original research work was carried out by her under my supervision. On the basis of the
declaration made by her, I recommend this project report for evaluation.

Ms. NISHTHA

ASSISTANT PROFF

ii
ACKNOWLEDGEMENT

It feels great pleasure in submitting this project to Ms.Nishtha, Assistant Professor

(Department of Law), without whose guidance this project would not have been completed
successfully. Last but not the least, I would like to express my heartfelt gratitude
towards my friends, who guided me and helped me at every possible step.

Words put on paper are mere ink marks, but when they have a purpose there exist a thought
behind them. I too have a purpose to express my gratitude towards my teacher without her
guidance the project would not have been possible.

Secondly I would also like to thank my parents and friends who helped me a lot in finalizing this
project within the limited time frame.

iii
LIST OF CASES
 Agricultural market Committee v. Shalimar Chemical Works
 B.K. Srinivasan and Ors. v. State of Karnataka and Ors
 Brij Sunder v. First Additional District Judge.
 Gramophone Company of India Ltd. v.Birendra Bahadur
 Gwalior Rayon Silk Manufacturing Co. v. Assistant Commissioner of Sales Tax
 Jatindra Nath v. Province of Bihar
 N. K. Papiah v. Excise Commisioner
 Queen v. Burah
 Registrar of Co-operative Societies v. K. Kanjambu
 State of Kerala and Ors. v. Mar Appraem Kuri Company Ltd. and Anr

iv
TABLE OF CONTENTS
A. DECLARATION----------------------------------------i
B. CERTIFICATE------------------------------------------------ii
C. ACKNOWLEDGEMENT------------------------------------------iii
D. LIST OF CASES-------------------------------------------------------------iv
E. TABLE OF CONTENTS-----------------------------------------------------------v
I. INTRODUCTION---------------------------------------------------------------------------1
II. STATUS BEFORE THE CONSTITUTION-------------------------------------------1-2
III. AFTER THE ADVENT OF THE CONSTITUTION: IN RE DELHI LAWS
ACT CASE: ANALYSIS OF FACTS AND JUDGEMENT-----------------------2-4
a. Was section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof ultra
vires? If so, then in what particular or particulars or to what extent?
b. Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the provisions
thereof ultra vires and in what particular or particulars or to what extent was the
same ultra vires the Legislature which passed the said Act?
c. Is Section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof
ultra vires and in what particular or particulars or to what extent was it ultra
vires the Parliament?
IV. ANALYSIS OF THE VARIOUS OPINIONS WITH REGARDS THE CORE
ISSUE---------------------------------------------------------------------------------------4-5
V. VIEWS FROM THE BENCH ---------------------------------------------------------5-8

i .The Source of Power to Delegate

ii. Ultima Thule: Limits of Delegation

iii. Delegation of power to make modifications and alterations

iv .Repeal of Law

v .Impact of the In Re: Delhi Laws Act Case

VI. CONCLUSION--------------------------------------------------------------------------9
BIBLIOGRAPHY

v
INTRODUCTION

Delegated legislation is one of the most inevitable parts of administration.1 Along with being
most significant, it was one of the most debatable issues in India. According to the traditional
theory, the function of the executive is administering the law enacted by legislature and in an
ideal state the legislative power must be exclusively dealt by the legislature.2 But due to an
increase in administrative functions and the subsequent shift towards the concept of a welfare
state, they have to perform certain legislative functions for a smooth functioning of the
government.3

STATUS BEFORE THE CONSTITUTION

A multitude of decisions by Privy Council and Supreme Court deal with the model of delegated
legislation. In the pre-constitution era, the Privy Council was the highest court of appeal from
any Indian decision. It was at this time that the question of constitutionality of delegation of
legislative power came before the same court in the case of Queen v Burah.4 The act in dispute
gave extensive powers to the Lieutenant Governor. The foremost among which was the power to
bring the Act in effect, determine what laws were to be applicable and power to extend the
application of the Act.5 The Act was enacted to remove garo hills from the jurisdiction of civil
and criminal courts and extend all or any provisions of the Act in Khasi, Jaintia and Naga Hills
in Garo Hills. 6 The principal question before the court was whether giving the Lieutenant
Governor power to extend the application of the law is delegation of power?7 Privy Council
observed that Indian legislature is not an agent or delegate as against Calcutta High Court but
was intended to have plenary powers of legislation, and of the same nature of the parliament
itself. It was observed that Indian legislature had exercised its judgment as to the place, person,
law, powers and what the governor was required to do was to make it effective upon fulfilment
of certain conditions. This is called conditional legislation which was upheld by the court.8 The

1
B.K. Srinivasan and Ors. v. State of Karnataka and Ors., (1987)1SCC658
2
S.P. Sathe, Administrative Law, (3rd Edn., Lexis Nexis Butterworths), p. 39
3
C.K. Takwani, Lectures on Administrative Law (3rd Edn., Eastern Book Company), p. 23.
4
1878 3 AC 889
5
Act No. XXII. of 1869.
6
Preamble, Act No. XXII. of 1869.
7
Burah, supra note 4
8
State of Kerala and Ors. v. Mar Appraem Kuri Company Ltd. and Anr., (2012)7SCC106

1
question of permissible limits of legislative power became important in Independent India. Just
on the eve of independence, the federal court, in Jatindra Nath , had held that there could be no
delegated legislation in India beyond conditional legislation. It was held that the Provincial
Government could not be allowed to extend the time for which the Bihar Maintenance of Public
Order Act 1948 was to remain. The court held this power to be non-delegable. This led to a lack
clarity regarding the extent of delegated legislation.9 The moot question was whether the
legislature of Independent India should be restricted to the rules laid down in the
abovementioned or should the legislature be given a greater degree of freedom to determine the
extent of delegation? It was left open to the courts to follow either the model in the United States
where the extent of delegation was to strictly defined or the one in the United Kingdom where
the extent of delegation was considered a matter of policy and therefore the courts were not
obliged to interfere. 10 Further, Indian constitution is silent on the issue whether legislature can
delegate or not and hence, such issues could not possible be decided keeping the text of the
constitution as the sole basis.

AFTER THE ADVENT OF THE CONSTITUTION: IN RE DELHI LAWS

ACT CASE: ANALYSIS OF FACTS AND JUDGEMENT

In order to clear doubts regarding the validity of a number of laws which contained such
delegation of legislative power, the president of India under Article 143 of the Constitution
invoked the Supreme Court's advisory jurisdiction seeking opinion on three questions submitted
for its consideration and report.11 The three questions were as follows:

A. Was section 7 of the Delhi Laws Act, 1912, or any of the provisions thereof ultra
vires? If so, then in what particular or particulars or to what extent?

The said provision provided that "The Provincial Government may, by notification in the
official gazette, extend with such restrictions and modifications as it thinks fit to the Province of

9
Srinivasan, supra note 1
10
M.P. Jain & S.N. Jain, Principles of Administrative Law (LexisNexis Butterworth’s, 6th ed., Reprint 2011), p. 49-
54.
11
Srinivasan, supra note 1, at p.42.

2
Delhi or any part thereof, any enactment which is in force in any part of British India at the date
of such notification."12 This Act delegated to the Provincial Government the power to extend to
Delhi area with such restrictions and modification any law in force in any part of British India.
This was held valid by the majority but citing different reasons.

B. Was the Ajmer-Merwara (Extension of Laws) Act, 1947, or any of the provisions
thereof ultra vires and in what particular or particulars or to what extent was the
same ultra vires the Legislature which passed the said Act?

The impugned section stated that "Extension of Enactments to Ajmer-Merwara. - The Central
Government may, by notification in the official gazette, extend to the Province of Ajmer-
Merwara with such restrictions and modifications as it thinks fit any enactment which is in force
in any other Province at the date of such notification."13 This act delegated the power to the
Government to extend to the province with such modification and restriction as it may deem fit.
This was also held valid by the court. The different reasons provided would be analysed
subsequently.

C. Is Section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof
ultra vires and in what particular or particulars or to what extent was it ultra vires
the Parliament?

The provision up for consideration before the court stated that "Power to extend enactments to
certain Part C States. - The Central Government may, by notification in the Official Gazette,
extend to any Part C State (other than Coorg and theAndaman and Nicobar Islands) or to any
part of such State, with such restrictions and modifications as it thinks fit, any enactment which
is in force in a part A State at the date of the notification and provision may be made in any
enactment so extended for the repeal or amendment of any corresponding law (other than a
Central Act) which is for the time being applicable to that Part C State.” 14 Part C were states
directly under the control of the Central Government without having a legislature of their own
and hence, Parliament had to legislate for them. This act delegated the power to the Central
Government to extend to Part C States with such modification and restriction as it may deem fit

12
Delhi Laws Act, 1912
13
The Ajmer-Merwara (Extension of Laws) Act, 1947
14
Part C States (Laws) Act, 1950.

3
any enactment which was in force in any Part A states. It also empowered the Government to
repeal or amend any corresponding law which was applicable to Part C States. Section 2 of the
Act was held valid but the power to repeal or amendment of any corresponding law which was
for the time being applicable to part C was void and was held to be excessive delegation.

ANALYSIS OF THE VARIOUS OPINIONS WITH REGARDS THE CORE ISSUE

The seven judges that presided over the case provided us with 7 different opinions for the final
adjudication. The importance of the case cannot be under estimated in as much as, on one hand

it permitted delegated legislation, while on the other, it demarcated the extent of such permissible
delegation of power.15 The question was with regards the extent to which the legislature in India
can delegate its legislative power. There were two extremist views put forth by the two counsels.
M. C. Setalvad took the argument that power of delegation is a necessary implication of the
power of legislation and the same does not result in abdication of the powers. The opposing
counsel took the view that there exists a separation of powers in the country and India follows
the doctrine of delegates non potest delegare. Therefore, there is an implied prohibition on
delegation of power. As both the views were radical, the court took a view that sought to
harmonize the two and provided the following dicta:

1. Separation of powers is not a part of the Indian Constitution.

2. Indian parliament was never considered as an agent of anybody. Therefore, the doctrine of
delegates non potest delegare is not applicable.

3. The Parliament completely cannot abdicate itself by creating a parallel legislative body.

4. The Power of delegation is ancillary to the power of legislation.

5. There is a limitation on delegation of power. Legislature cannot delegate its essential

legislative power. Essential legislative power means the power to lay down the policy of the law
and enacting that policy into a binding rule of conduct.

To arrive at these common conclusion, the Supreme Court gave 7 different pathways. There was
unity of outlook on two points. Firstly, keeping the exigencies of modern government in view,
15
Sathe, supra note 2, at p.42.

4
Parliament and state legislatures have to delegate the power in order to deal with multiple
problems prevailing in India, as it is impossible to expect them to come with complete and
comprehensive legislation on all subjects sought to be legislated on. Secondly, since the
legislature derives its power from the Constitution, excessive freedom like in the case of British
constitution cannot be granted and limitations are required.

The Hon’ble Judges differed on the question as to what were the permissible limits within which
the Indian legislature could delegate its legislative powers. One view advocated that the
legislature can delegate power to the extent that it does not abdicate its own power to have
control over the delegate i.e. it must retain in its hands the ultimate control over the authority so
as to be able to withdraw the delegation whenever delegate did something wrong. The second
view reasoned that the legislature cannot delegate its essential functions which comprised the
formulation of policy etc. This meant that the legislature should lay down the standards or policy
in the delegating Act and the delegate may be left with power to execute the policy.

VIEWS FROM THE BENCH

i. The Source of Power to Delegate

It was concurred upon that the legislation should essentially be enacted by the Legislature such
that the intention of the same is manifested, the Legislature cannot retire and leave the task of
law making to any other body or class of bodies. Therefore, delegation, in respect of delegating
law making authority by one legislature to another is, by necessary implication, forbidden by the
Constitution. In this backdrop, it was claimed by the learned Attorney General, M. C. Setalvad
that the Parliament could delegate because of the legislative power carried with it is power to
delegate. This was reject out rightly by Chief Justice Kania, Justice Mahajan and Justice
Mukherjea opining that constitution had never per se warranted delegation powers at any stage
and all of them agreed on the outlook that legislature can however, conditionally legislate. . In
doing so it may, in addition, lay down conditions, or state facts which on being fulfilled or
ascertained according to the decision of another body or the execution authority, the legislation
may become applicable to a particular area. This was described as conditional legislation. Justice
Bose who was in favour of delegated legislation, also concurred with the opinion above.
However, Justice Sastri and Justice Das, acceded to the contention of the Attorney General and

5
therefore differed from the majority. Their decision was based on the theory of Parliamentary
sovereignty and they observed that power to make law comes along with the power to delegate.
To provide a more holistic perspective, the author may point out that this case was decided in
1951 and since then the law on the subject has changed drastically. It is now judicially conceded
that power of delegation is constituent element of legislative power, and the power resides in the
legislature.16

ii. Ultima Thule: Limits of Delegation

The present position is that the legislative function in its true and intrinsic sense cannot be
delegated. Therefore what can be delegated are only the non-essential functions. Only functions
ancillary to the essential functions of the legislature. According to the opinion of Justice
Mukherjea, if the policy laid down in an Act is in broad terms, the formulation of the details of
the policy can generally to be passed to the executive. Justice Mahajan, added that essential
matters cannot be delegated by the legislature. Chief Justice Kania opined that legislature cannot
delegate to lay down policy underlying a rule of conduct.

Discretion to make modifications and alterations in an Act while extending it to a given area, and
to effect consequential amendments or changes in an existing law is again conditioned with the
proposition that essential functions can’t be delegated. The question on amount of discretion
exercisable by delegated authority cannot be defined and is a question that depends on the facts
and circumstances of each case.

iii. Delegation of power to make modifications and alterations

The questions stated in this case is already stated above. Most of the judges answered these
questions in affirmative. Only Chief Justice Kania and Justice Mahajan differed. They observed
that only the legislature has the authority to modify and alter the law in any substantive sense.
Justice Fazel Ali added that the power to change necessary things is incidental to applying the
law.

If modifications are done within the framework and does not change the identity or structure no
objection could be taken. Justice Mukherjea observed that modification does not mean change of

16
Gramophone Company of India Ltd. v.Birendra Bahadur, (1984)2SCC534, p.40

6
policy but it is confined to alterations which keeps the policy intact and introduces changes
appropriate to suit the local conditions. Justice Bose also was of the same opinion. In this way,
the majority felt that the executive authority could be authorised to modify the law but not in
essential and intrinsic sense.

iv. Repeal of Law

The power to repeal a law is essentially a legislative power and hence, delegating that to the
Government is at once ultra vires the power to delegate. Justices Fazl Ali, Das and Sastri held all
the sections to be perfectly valid. The majority based its opinion on the maxim of unis est
exclusion alterious and ruled that an express provision permitting delegation contained in Article
357 would mean that unrestrained legislation was not permitted under the constitution. Essential
functions could not be delegated under any condition. The minority based its view of the theory
of legislative omnipotence of the British Parliament, and its reflection in the Australian, the
Canadian and the Indian Constitutional systems, which include the power to delegate legislative
functions, subject to the condition of non-abdication. The author would note here that, in
essence, the variance between the views of the minority and majority was not antagonistic. To
say that legislature should not abdicate its power is not entirely opposed to saying that the
legislature should not delegate its essential powers.

v. Impact of the In Re: Delhi Laws Act Case

After In Re Delhi Laws Act 17, the question which arose was related to the limits of delegation
and the grounds for such limitation. The first case which encountered this question was Gwalior
Rayon.18 Here, Section 8(2)(b) of Central Sales Tax Act. 1956 authorised levying of sales tax on
interstate sales @ 10% or at the rate applicable to sale or purchase of goods in that state,
whichever is higher. This was challenged as excessive delegation on the grounds that no policy
was laid down in the parent act. The validity of the Act was upheld. Justice Khanna propounded
the “Standard Test” which provided that when legislature confers powers on an authority to
make delegated legislation it must lay down policy, principle or standard for the guideline for the
authority concerned. Justice Matthew, in his separate opinion, endorsed the “Abdication Test”

17
In Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws)
Act, 1950, [1951]2SCR747.
18
Gwalior Rayon Silk Manufacturing Co. v Assistant Commissioner of Sales Tax, (1974)4SCC98

7
i.e. as long as the legislature can repeal the parent act conferring power on the delegate, the
legislature does not abdicate its powers. The majority refused to accept this test. Justice Mathew,
in the case of N. K. Papiah19 held the legislation valid based on the Abdication Test. The
question was whether the Act which conferred power on the Government to fix the rate of excise
duty and lay them before the legislature, was valid or not. Further in the case of Brij Sunder 20the
court even allowed the extension of future laws of another state to which the adopting state
legislature never had an opportunity to exercise its mind. In addition to this, in K. Kanjambu 21 ,
the court propounded the “Policy and Guideline” test. It is fascinating here to note that all these
cases upheld the constitutional validity of the delegated legislation in question.

19
N. K. Papiah v Excise Commisioner, (1975)1SCC492.
20
Brij Sunder v First Additional District Judge, (1989)1SCC561.
21
Registrar of Co-operative Societies v K. Kanjambu, (1980)1SCC492.

8
CONCLUSION

The case has materially contributed in the development of the concept of delegated legislation by
clarifying certain areas of confusion. One of it was laying down that the British model of
Delegated Legislation cannot be implemented in India because of the difference in certain basic
tenets of the Constitution and system of administration. Moreover, it laid down that delegation is
possible and necessary due to increase in burden on the legislature and increase in administrative
activities. This cleared the confusion surrounding conditional delegation and delegation. This
case increased the scope of the delegated legislation to the extent of ancillary powers i.e. non-
abdication of own power and non-transferring of main and essential functions. A Majority of the
judges were in favour of delegated legislation. Only Justice Mahajan and Chief Justice Kania
were in disagreement with the same. The latter emphasized on the concept conditional
delegation. As the opposition counsel built on the argument of separation of powers and the
concept of non potest delegare, the court observed that separation of powers is not a part of
Indian constitution. Courts are clear on the status of delegated legislation being allowed.22 The
only question the courts must appreciate in such cases is whether the power delegated is
excessive or within the ambit of the parent act.23 In culmination, this case achieved 2 material
ends. Firstly, it legitimized delegation of legislative power by the legislature to administrative
organs. Secondly, it imposed an outer limit on delegation by the legislature. It may also be noted
here that the present case shows lack of judicial consensus. The ghost of Jatinder Nath was
hovering over the judges who presided over both these cases and they could not be expected to
change their opinion as such short notice. In the contemporary scenario, it is a well-accepted
concept and delegation of power is allowed as long as it is reasonable.

22
Agricultural market Committee v Shalimar Chemical Works, (1997)5SCC516
23
I. P. Massey, Administrative Law (7th Edn., Eastern Book Company), p. 103.

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 BIBLIOGRAPHY

STATUTES

1. Act No. XXII. of 1869

2. Delhi Laws Act, 1912

3. Part C States (Laws) Act, 1950

4. The Ajmer-Merwara (Extension of Laws) Act, 1947

TREATISES

1. C.K. Takwani, Lectures on Administrative Law

2. M.P. Jain & S.N. Jain, Principles of Administrative Law
3. S.P. Sathe, Administrative Law
4. I. P. Massey, Administrative Law

10