JUDICIAL CONTROL: DOCTRINE OF ULTRA VIRES IN ADMINISTRATIVE LAW by Pratiksha Gautam & Sakshi Nathani

Posted on: September 26, 2020 Posted by: admin Comments: 0

Author : Pratiksha Gautam, Student at Alliance School of Law, Alliance University, Bangalore.

Co-Author: Sakshi Nathani, Student at Alliance School of Law, Alliance University, Bangalore.

ABSTRACT

The delegation of legislative power is permissible only when the legislative policy is adequately laid down and the delegate is empowered to carry out the policy within the guidelines laid down by the legislature. This technique of delegated legislation is so extensively resorted to in modern administrative process that there is no statute to enact by the legislature today which does not delegate some powers of legislation to the Executive. Thus, the validity of delegated legislation may be adjudged by the courts on the ground whether it is ultra vires or intra vires to the parent Act.  The aim of the paper is to understand the scope of the doctrine of ultra vires in the delegated legislation and under what circumstances the power conferred by the legislature to the sub ordinate authority is excessive or ultra vires to the parent Act provision. The paper attempts to deal with the provision of doctrine of ultra vires as applied to the administrative actions and the power of judiciary to review such delegated legislation that works beyond the provision of parent statute or the rules challenging the validity of the Act. The paper emphasis to study the judicial control over the delegated legislation through the doctrine of ultra vires and whether Indian judiciary had applied such doctrine to control the excessive delegation of authority by the legislation. The concept of ultra vires is been vibrated and interpreted under various legislation and statues, carrying out rule of interpretation followed by jurist in various cases.

Keywords- Ultra vires, delegated legislation, judicial review, legislature, executive, parent act.

INTRODUCTION

Delegated legislation is bureaucratic legislation. It involves transfer of legislative power from the Legislature to the Executive. The democratic safeguards which apply to the Legislature are absent in the case of delegated legislation. There is no inherent power of delegation in the legislature, but the constitution confers a power and imposes a duty on the Legislatures to enact laws as a necessary postulate of the sovereignty of the people. An over burdened legislature or one controlled by a powerful executive may unduly oversteps the limits of delegation. The validity of delegated Legislation may be adjudicated by the courts on the ground whether it is ultra vires or intra vires the parent Act. The doctrine of ultra vires is the basic doctrine in the area of Administrative Law. The doctrine envisages that an authority can exercise only so much power as is conferred on it by law and if the recipient of the statutory power exercise excess power the court may declare the act to be void and of no legal effect. The doctrine of ultra vires has two aspects substantive and procedural ultra vires. When administrative authority acts without power, in excess of power or abuses power, such acts will be rendered invalid on the ground of substantive ultra vires. When an administrative authority acts in contravention of mandatory rule specified in the legislation or does not comply with the principles of natural justice, such acts will be rendered invalid on the ground of procedural ultra vires. The power of judicial review of legislative action has been vested in the Indian Supreme Court. It must also be pointed out that judicial review has been considered as a ‘basic feature’ of Indian Constitution. This means that a statutory provision excluding judicial review may even be declared ultra vires. The doctrine of ultra vires is applied to both public and private bodies, in the field of public administration; it gives protection by enabling the courts to put a control over the excessive delegation. The legislation delegates powers to the administration in order to comply with the proceeding and the duties to enforce the rules and regulation in accordance with the law and order with the reasonable framework with efficiency to delegate the work.

RESEARCH PROBLEM

The research is carried to understand the application of doctrine of ultra vires on the delegated legislation. The delegation of power to the subordinate authority to frame rules and regulations is backed with many contemporary issues. The paper emphasized to research on the powers of legislators to delegate the authority power and how such delegation of authority may be controlled by judiciary under the given circumstances. The purpose is to critically analyze the doctrine of ultra vires of delegated legislation and how the judicial review mark as an important aspect to enshrine the doctrine over such delegation of power. Further paper deals to understand in detail the types of ultra vires doctrine and its application under various circumstances like power to modify parent Act, unreasonableness of rules, mala fide intension and the provision of publication how such doctrine is embodied.

RESEARCH QUESTION

Q 1. How the power of judicial review over legislative action exercising Doctrine of ultra vires is controlled and interpreted by Indian Courts?

HYPOTHESIS
  • Is the Doctrine of Ultra vires is a central principle of the administrative law and its action?
  • Whether the judicial control over the Doctrine of ultra vires is subjected to the judicial review or not?
EXISTING LEGAL SITUATION

The validity of delegated legislation may be adjudged by the courts on the ground whether it is ultra vires or intra vires the parent Act. An action of the authority is ultra vires when it goes outside the limits prescribed under authority delegated. The doctrine has two aspects substantive and procedural ultra vires. The phenomenon concept of judicial review considered as the basic feature of the Indian Constitution is the fundamental to the application or the purview of the doctrine of ultra vires. The judiciary is detrimental to apply the doctrine in order to control the excessive delegation and to circumcise the power of the Executive to enact the rules. Where the Executive has excessive power to legislate the particular action is restricted by the application of doctrine. The aim of the judicial is to control the delegated legislation and enshrine the doctrine of ultra vires to apply the principle of separation of power and follow the rule of law to enforce the law and order.

LITERATURE REVIEW

MC, Garity, Thomas O, Substantive and Procedural Direction in Administrative Resolution of Science Policy. In this article he, proposes that courts substitute immediate substantive review for procedural review of agency guidance documents. The article begins by the reviewing the extensive literature about how court should treat and a rule is Ultra Vires when it is beyond the rule-making power of the authority. It is the basic doctrine in Administrative law and the foundation of judicial power to control actions of the administration.

JeongHaeyoung, Adminstrative rule of law and Public contribution. Ajou Law Review,

This article gives the important deep information about the doctrine of ultra vires has two aspects: substantive and procedural. When a piece of delegated legislation is declared to be ultra vires, it is void and becomes unenforceable. It cannot affect the rights and duties of any person. A void rule cannot be the basis of any administrative action.

More, H., Substantive Ultra Vires Acts and Judicial Control Over It. This is an article about the main part of the ultra vires act is one beyond the purposes or powers of a corporation. It is to be mentioned that all ultra vires actions are void but all void actions are not ultra vires. An erroneous act is void but not ultra-virus. The law of ultra vires does not apply to the acts done by private citizens but only to those done by authorities or persons clothed with legal powers. Powers enables an authority to do what would otherwise be illegal or ineffective.

Vakil, KeliDarshan, Procedural Deviance of Delegated Legislation from Parent Act. This is the article about the deep knowledge about the doctrine it is the fundamental principle of law that a public authority cannot act outside the powers i.e. ultra vires. The doctrine refers to the extent; scope and range of power conferred by the parent action the concerned authority to make rules.

JeongHaeyoung, Administrative rule of law and Public contribution, Law Review. This is the journal about the knowledge for the many of the validity of delegated legislation can be questioned on the ground that it is ultra vires the parent act. It has become an accepted principle of law that the delegated exercise of legislative power must be exercised in conformity with the principal power or authority.

OBJECTIVES
  • To understand the scope doctrine of ultra vires in the administrative law
  • To analyze the difference between the procedural and substantive ultra vires
  • To recognize the position of judicial review under the doctrine of ultra vires
  • To understand under what circumstances the delegated legislation suffers from doctrine of ultra vires
  • To understand the judicial control where the delegated legislation goes beyond the scope of the power conferred by the parent Act
METHODOLOGY

The present research paper uses the most recent available published secondary data. To achieve the objectives, the secondary data was used. The secondary data are mainly used from Government departments for policy information,

  • Judgments/Acts
  • Research reports, books and articles,
  • Newspapers clippings,
  • Online sources,
  • SCC journals and bare acts.
JUDICIAL CONTROL: DOCTRINE OF ULTRA VIRES

What is doctrine of Ultra Vires?

The doctrine of ultra vires is the basic doctrine in the area of administrative law. The doctrine intends to provide that an authority can exercise only so much power as is conferred on it by law. Whereas, an action of the concerned authority is said to be intra vires when it falls within the limits of the power conferred on it but ultra vires if it goes outside this limit settled by law. The doctrine of ultra vires has two aspects: substantive and procedural.

Ultra vires is a Latin phrase meaning “beyond the powers”[1]. An act which requires legal authority but is done without it is characterized in law as ultra vires. Its opposite, an act done under proper authority, is intra vires.

In the scheme of control-mechanism, the first place is occupied by the judicial control. The court review delegated legislation on the number of grounds, such as violation of the Constitution either by the parent Act or by the delegated legislation; violation of the substantive provisions of the parent Act; violation of mandatory procedural provisions; non-conformity with other statutory provisions; test of unreasonableness and the arbitrary action. Thus, to it is for judiciary to decide whether the particular piece of delegation suffers from the vice of excessive delegation. If the parent Act is declared void if it is unconstitutional then the subsequent delegated legislation emanating from it also falls on the same ground. The second stage of judicial control comes through the doctrine of ultra vires, when the delegated legislation itself is tested on the touch stone of the parent Act. The doctrine is that delegated legislation should not travel beyond the purview of the parent Act. If it does, it is ultra vires the statute and cannot be given effect to.

It is for the courts to scrutinize whether a piece of delegated legislation is within the scope of the powers conferred by the statute or has been made in accordance with the procedure prescribed therein. If the subordinate legislative authority keeps within the powers delegated, or It follows the procedure prescribed, the delegated legislation is necessarily valid. But if it is not authorized by the Act, the court will declare it ultra vires. When a subordinate legislation involves defects of substance which arise because the delegated legislation goes beyond what the legislature authorized the delegate to enact, the doctrine is known as substantive ultra vires, and if it is declared unlawful because of failure to observe the procedure, the doctrine is known as procedural ultra vires.  In Agarwal Ayengar & Co. v. State[2], the question considered is whether under the doctrine of implies powers the delegate can assume more powers than those conferred expressly. It is known doctrine in England that the delegate is entitled to do not only which is expressly authorized but also that which is reasonably incidental to or consequential   upon that which is in terms authorized.[3] In this case, the court found that whatever was sought to be done by delegate went beyond this limit. The courts have also been unkind to exercise of delegated legislative power retrospectively without any express authority to the effect being conferred by the parent Act.[4] Retrospective legislation having the effect of changing the character of past transaction carried out on the faith of the existing law is deemed repugnant to the rule of law, and therefore, it cannot be assumed, in the absence of express provision, that the Parliament ever intended to delegate this power to legislate. Delegated legislation repugnant, or inconsistent with, or in contravention of, or in excess of or overriding the provisions of, the parent Act is ultra vires. The question was whether the rules can be declared to be ultra vires on the ground of unreasonableness and also court considered the view where the delegated legislation is valid within the terms of the parent Act becomes invalid when it comes into the conflict with some other general law. On such circumstances court referred to case Harishnkar Bagla v. M.P.[5], where it held that delegate fails to follow prescribed procedure, the courts may or may not quash delegated legislation depending whether the procedure is held to be mandatory or directory.

The principle that rules should travel beyond the scope of enabling authority can be applied effectively only if the delegatory Act defines the precise limits of the law making power. If the power to make rules is delegated in very broad terms, or if the limits on the power of the delegate are not mentioned clearly, or are mentioned in vague language, or when discretion is conferred, its limit not been defined with equal clearness.[6] It becomes difficult for the court to apply the doctrine of ultra vires and the executive becomes uncontrolled. Thus, courts adopt a deferential, rather than critical, attitude towards delegated legislation and lean towards upholding the same.

Substantive Ultra Vires

Substantive ultra vires is one of the wing in which the courts have used in administering control over subsidiary legislation working under authority. In case of Wong Pot Heng, it was proven that the courts have power to invalidate subsidiary legislation which was found to have been substantively ultra vires. The efficacy of substantive ultra vires is very dependent on the phrasing of the delegated legislation and its efficacy is indirectly subjected to the terms used in statue in conferring the power to make subordinate legislation. The doctrine refers to the scope, extent and range of power conferred by the parent Act on the concerned authority to make laws. The rules framed must be within the purview of the rule making power of the authority framing such rule.[7] While applying the doctrine of ultra vires to delegated legislation, the courts de not look merely at the express words of the enabling provision in the parent statute, but go beyond it and apply some restrictions therein. The sole concern of the court is whether the impugned rule is ultra vires or intra vires.

In Agricultural Market Committee v. Shalimar Chemical works, the Supreme Court had explained the doctrine of ultra vires as follows;

‘The effect of these principles is that the delegate which has been authorized to make subsidiary Rules and Regulations has to work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder.’ [8]

To apply the doctrine of substantive ultra vires, the court, first, interprets the relevant statutory provisions to determine the scope of delegation of power and then, interprets the impugned delegated legislation, and finally, adjudge whether the same is within or without, the statutory power conferred.[9] The court may interpret the statutory provision narrowly or broadly keeping in view the circumstances of the specific case. For example, a provision in a State Municipal Act stated that when any local area was included in a municipality, ‘all rules, bye-laws, directions and powers’ made under the Act would apply to the local area included within the limits of municipality. The Supreme Court ruled in Atlas[10] case, that this provision did not include ‘notification’. This case provides an example of the court interpreting the delegated provision narrowly.

Kinds of the substantive ultra vires:

  1. Constitutionality of the Parent Act

The parent Act under which the legislative powers have been delegated to Administration can be questions whether it is constitutional or not. The parent Act my be held unconstitutional  on several grounds such as, excessive delegation, breach of Fundamental Rights or any other area such as distribution of powers between the Centre and the States. In Chintaman Rao case, where statute prohibiting the manufactures of bodies in some areas for certain period. The order was challenged as it is unconstitutional and against Article 19(1)(g). The court quashed the Parent Act and also the delegated legislation.

      2. Constitutionality of Delegated Legislation

The legislation delegates the legislative powers to the administration. It is requirement of the delegation that the parent Act should be constitutional and valid. The powers delegated must confer by the provisions of the parent statute and the delegation shall be within the authority is established. In Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh , a few provisions of the U.P. Coal Control Order, 1953 made under section 3(2) of the Essential Supplies Act, 1946, were declared ultra vires as infringing Article 19(1)(g) under the India Constitution.

      3. Carrying out the purposes of the Act

Often the rule making power is conferred without specifying the purposes for carrying out the purposes of the Act. This is a general delegation without laying down any guidelines. This power cannot be exercised in such a way as to bring into existence substantive rights or obligations or disabilities not contemplated by the parent Act itself.[11] In A.K. Roy v. Union of India[12], court held that a rule may be challenged on the ground that it has no relation with the purpose for which the rule-making power has been given. This means there must be some nexus between the rule and the underlying purpose of the statute, though direct nexus is not necessary.

Where the parent Act delegates one matter, and the subordinate authority legislate on another mater, there arises inconsistency between the parent Act and delegated legislation[13]. Therefore, the legal effect of the formula is that the rule framed may be ultra vires if it had no nexus with the purpose of the Act or if scuttles the same.[14]

     4.  Power to modify the Parent Act

It has been pointed that a statute may confer power on the Executive for its own modification. Such power enables the Executive to modify rules or amend the statute made by the Legislature. Prima Facie such a power makes the Executive superior even to the Legislature.  To control the power of the Executive, the courts insist that such a power cannot be exercised so as to change the basic policy of the parent Act. It is upto the court to decide the ‘essential legislative policy’ of a statute and also power of exemption cannot be used as to alter the policy of the parent Act.[15]

In Rajnarain case, where such a provision was involved, the executive picked up a section of the parent Act pertaining to the levy of taxes and extended it to a new area. The policy of the parent Act was to give to the concerned people an opportunity of filing objections and of being heard before any tax was imposed on them, but the tax was imposed without giving the people concerned of hearing. Court held that this involved a change of policy and therefore, the extension of the section was ultra vires in nature.[16]

     5.  Mala Fides of the Rule Maker

A rule may be challenged on the ground of mala fide of the rule-making authority. Mala fide means in bad faith. It is the cardinal principle of Administrative Law all powers are to be exercised in good faith, as malafide intention vitiates an administrative action.[17]

In B.D. Gupta v. State of Uttar Pradesh[18], Supreme Court held that ‘it is well established that no legislation can be challenged on the ground of mala fides’. But may quash the service rules on the ground that the government was motivated by the extraneous consideration in issuing the rules.[19] Also motive behind the delegated legislation is not relevant while determining its validity if it is within the competence of authority making subordinate legislation.[20]

    6.  Unreasonableness of the Rules

The test of unreasonableness has been applied in Britain to the bye-laws made by a municipal corporation. The court might take the position that the legislation never indented to give authority to make unreasonable rules, and therefore, may consider it ultra vires.

In McEldowney v. Forde, a decision of the House of Lords, views were expressed that a ministerial regulation can be held void on such grounds as vagueness, ambiguity, arbitrariness, uncertainty, unreasonableness and bad faith[21]. In Britain the test of unreasonableness has been laid down in Mixnam, as the kind of unreasonableness which invalidates a bye-law is not the antonym of ‘reasonableness’ in the sense of which that expression is used in the common law, but such as manifest, arbitrariness, injustice or partiality that a court would say[22].

In India, the test of reasonableness is applicable to delegated legislation both on the basis of general principles of Administrative Law and under Fundamental Rights as Art. 19 or 14 of the Constitution. In Mahalaxmi Fabric Mills, it was held that a subordinate delegation is open to challenge on the ground that it is arbitrary, irrational or confiscatory in nature so as to be violative of Article 14 and 19(1)(g) of the Constitution[23]. Also in Air India v. Nargesh Meerza[24], regulations made by Air India providing for termination of service of an air hostess on her first pregnancy has been held to be the most unreasonable and arbitrary provision which is abhorrent to the notion of a civilized society and came very close to saying that the unreasonable rules would be ultra vires.[25]

    7.  Retrospective Operation

There exists an implied restriction on making rules with the retrospective effect.  There is no prohibition in the Constitution against ex post facto laws, except in the area of criminal law.[26]A general power to make rules ‘to carry out the purpose of the Act’ does not entitle the Government to make retrospective rules. [27]However, in the Ashok Lanka case, it was said that the primarily a subordinate legislation cannot be given retrospective effect but a classificatory notification can be given retrospective effect.[28] The reason underlying the proposition is that retrospective rules may prejudicially affect the vested rights and so it is proper that only the Legislature, and not its delegate, make retrospective rules.  Accordingly, the courts declare retrospective rules invalid unless the authority making them has power to do so under the parent statute.

   8.  Subdelegation

The Lok Sabha Committee on subordinate Legislation has emphasized that the subdelgation should not be made in very wide language or it should not be made when parent Act is silent on the point. It also stated that there should be safeguard imposed before a delegate is allowed to sub-delegate its authority to another functionary. [29]In Blackpool Corporation v. Loacker, it was held that there is the well established principle that a sub-delegate cannot act beyond the scope of the power delegated to him. This is the principle of ultra vires[30]. After the legislature has performed its essential legislative duty the statute can empower the delegate to re-delegate his function to sub-delegate.[31]

Judicial Review

It is widely recognized that the propriety of judicial decisions in particular cases depends on the basis and legitimacy of judicial review as a whole that the administrative law is only a department of constitutional law, and that the judicial role therefore arises controversial and sensitive question of legal authority and constitutional  interpretation. The simple proposition that a public authority may not act outside its powers (ultra vires) would be widely accepted as ‘the central principle of administrative law’, this may have less argument in case of written statue conferring the power. [32]The prime role of the doctrine is to provide the necessary constitutional underpinning for the greater part of judicial review. The ultra vires doctrine has never been the sole justification for judicial review.[33]

A formula at times used in the statutes is to say that the rules enacted under the Act would have effect ‘as if rules were enacted or included in the Act itself’. This is known ‘as if enacted’ clause.  In accordance with the Herschell view, to exclude the doctrine of ultra vires and accord to the rules a finality and freedom from judicial review. This view came to be criticized on the ground that to represented the high watermark of the inviolability exempt from the judicial review just as the statute itself is exempt there from.[34]However, the Herschell doctrine was overruled by the House of Lords in Minister of Health v. the King, ex parte Yaffe, where it expressed the view that the delegated legislation, if inconsistent with the Act, would not be saved and that it would be bad. Thus, the validity of any rules made under the ‘as if enacted’ provision remains legally open to question. The word does not conclude the consideration of the ‘vires’[35]. Thus, in A.G. v. Ryan, held that such sort of ouster clauses do not prevent the court from intervening in the case of excess of jurisdiction and violation of principle of natural justice. The application of doctrine of ultra vires is wider in the nature.[36]

In State of Kerala v. Abdulla and Co., court stated that such a provision attaches no additional sanctity to the rules. The court emphasized that there is no reason why the doctrine of ultra vires should not apply even when the rules are declared to be effective ‘as if enacted in the Act’. The rules are delegated legislation and the delegate can claim no more power than what the ambit or scope of the delegation by the parent statute happens to be. Therefore, the rules ultra vires the power delegated being void ab intio cannot form the part of the Act[37]. So, even if ‘as enacted’ clause in the statute is mention, a rule to be valid must fulfill two conditions, namely:(1) it must conform to the provisions of the statute under which it is framed, and (2) it must also come within the scope and purview of the rule making authority having power to frame the rule and regulations. This means an ultra vires rule cannot be validated by the ‘as if enacted’ clause.[38] It must also be pointed out that judicial review has been considered as a ‘basic feature’ of Indian Constitution. This means that a statutory provision excluding judicial review may even be declared ultra vires.

PROCEDURAL DOCTRINE OF ULTRA VIRES

Meaning

When a subordinate legislation fails to comply with procedural requirements prescribed by the parent act or by general law, it is known as procedural ultra vires.[39] When the power is conferred on an administrative body, the instrument conferring the power may itself provide for restrictions on the exercise of the power. Such restriction may be procedural (i.e. how the power is to be exercised). Even though the statue conferring the powers does not in terms limit its operation, the courts will impose limits by reference to principle of reasonableness and fairness.[40]In recent times, procedural fairness has emerged as a unique check on the executive and courts may read such procedural fairness in delegated legislation.

Section 59 of the Mines Act, 1952 empowers the Central Government to frame regulation which is referred to the Mining boards in draft form for reporting about their expediency. The Board is to be given reasonable opportunity. Failure to comply with this procedure is ultra vires.[41]In case or procedural ultra vires, the court may quash the delegated legislation depending whether the procedure is held to be directory or mandatory. The procedural defects cannot be regarded as fundamental or as invalidating the imposition of tax by a local body where the tax proposal was not published in the prescribed manner. If substantial compliance is made, the omission would amount only as a mere irregularity and not ultra vires.[42] In short, an administrative authority may be exercising a power for an authorized purpose but, if it fails to follow a required procedure, its actions will be open to challenge. The authority here may be doing the right thing ‘but it is doing it ‗in the wrong way‘. This is the concept of procedural ultra vires‘.

Publication

The word Publication refers to the action of making something generally known. It comes from the Old English word ‘’publicatio” whose origin can be traced back to ‘’publicare”, which means to make public.[43]The simple concept which ascertains the publication of delegated legislation revolves around two important principles. Firstly, it is to provide the parties which are going to be affected by the said legislation an opportunity of being heard as provided by the Principle of Natural Justice, Secondly, according to the maxim ignorantia juris non excusat(i.e. ignorance of law is no excuse) and according to this rule no person can claim the ignorance or him not knowing the law as an excuse. But this can be applied only when the public were made aware of the existence of such law and this can be done by the means of publication hence Publication of Legislation and Delegated Legislation has evolved and is regarded as a mandatory rule.

It is a fundamental principle of law that ignorance of law is no excuse‘(ignorantia juris nonexcusat). But there is also another equally established principle of law that the public must have access to the law and they should be given an opportunity to know the law. The very justification for the basic maxim is that the whole of our law, written or unwritten, is accessible to the public-in the sense, of course, at any rate, its legal advisers have access to it, at any moment, as of right.[44] Jain and Jain rightly stated: it is essential, therefore, that adequate means are adopted to publicize delegated legislation so that people are not caught on the wrong foot in ignorance of the rules applicable to them in a given situation. The system of publication ought to be such that delegated legislation is not only made known to the people, but it is also easy to locate as and when necessary.

Statutory Requirement For Publication In India

In India there is no special law which provides for the publication of delegated legislations. The legislation has to be published in the official gazette for commencement and is needed to be published in the mode prescribed in the Parent Act for the knowledge of the general public. With regard to the post-natal publication, it has now become a custom to give notice and get opinions from the people (specifically the affected or for whom the law is made).[45]

In the case of Raza Buland Sugar Co. Ltd v. Municipal Board,[46]chief justice Gajendragadkar, J. Wanchoo And J. Raghubar Dayal held that Section 131(3) of U.P Municipality Act, 1916 can be divided into two parts the first one providing that the proposal and draft rules for a tax intended to be imposed should be published for the objections of the public, if any, and the second laying down that the publication must be in the manner laid down in Sec 94(3). Considering the object of the provisions for publication-namely to enable the public to place its viewpoint before the Board-it is necessary to hold that the first part of the section is mandatory, for to hold otherwise would be to render the whole procedure prescribed for the imposition of taxes nugatory. The second part of the section is, however, merely directory. What it substantially requires is that the publication should be in Hindi in a local paper, and if that is done that would be compliance with Sec 94(3). In the instant case publication was made in Hindi in a local paper which on the evidence seems to have good circulation in Rampur. There is no regularly published local Hindi newspaper. There was, in the circumstances, substantial compliance with the provisions of Sec 94(3) in this case. (ii) Section 135(3) provides that a notification of the imposition of tax in the Government Gazette was conclusive proof that the tax had been imposed in accordance with the provisions of the Act. Whether such a notification will save a tax which has been imposed without at all complying with one of the mandatory provisions of the relevant law was a question that did not directly arise in the case. In the instant case there had been compliance with the mandatory part of Sec 131(3) and substantial compliance with the second part. Therefore a. 135(3) applied to the case and the objection that the tax was not validly imposed could not succeed.23

In the case of Gvindlal ChhagganLal Patel V. The Agricultural Produce Market Committee, Godhra And Others[47]it was held that Section 6(1) of  Gujarat Agricultural Produce Markets Act, 1964 means what it says. That is the normal rule of construction of statutes, a rule not certainly absolute and unqualified, but the conditions which bring into play the exceptions to that rule did not exist. It is not reasonable to assume in the legislature and ignorance of the distinction between a “section” of the statute and the “sub-section” of that section. The requirement laid down by Sec 6(1) that a notification under “this section” shall also be published in Gujarati in a newspaper would govern any and every notification issued under any part of Sec 6, that is to say, under any of the sub-sections of Sec 6. Sometimes the legislature does not say what it means. That has given rise to a series of technical rules of interpretation devised or designed to unravel the mind of the law-makers. The words of the concluding portion of Sec 6(1) are plain and unambiguous rendering superfluous the aid of artificial guide-lines to interpretation. “Shall” must normally be construed to mean “shall” and not “may”, for the distinction between the two is fundamental. The use of the word “shall” or “may” is not conclusive on the question whether the particular requirement of law is mandatory or directory. In each case one must look to the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. A notification under Sec 6 must be published in Gujarati in a newspaper. This requirement is mandatory and must be fulfilled. Admittedly, the notification in question was not published in a newspaper at all, much less in Gujarati. Accordingly, the inclusion of new varieties of agricultural produce in that notification lacks legal validity and no prosecution can be founded upon its breach.[48]

Publication of delegated legislation is very important to protect the rights of the people and to satisfy the principles of Natural Justice. It gives the general public an opportunity to give their opinion thus enabling the true sovereign to take part in the law making process. It also ensures the very important concept of Natural Rights that the person going to be affected is given a chance to give express his view. It also ensures that no person should be unaware of the law in force, since it cannot be claimed as a defense. If the people are not made aware of the law, then the ordinary course of punishment will result in injustice. As far as the status of the publication of the delegated legislation in India is concerned, it is not codified and a standard procedure is not established but however, the Judiciary steps in and regulates the process of publication of delegated legislation. In my opinion though the Judiciary has filled the void that exist in the sphere of Publication of Delegated legislation, it has not perfected it and hence a separate Act like Administrative Procedures Act of America, should be into force in India in order to standardize the process of Publication of Delegated Legislation.

CONCLUSION

It can be said that if the subordinate or delegated legislation goes beyond the scope of authority concerned on the delegate or it is in conflict with the Parent or Enabling Act, it is called substantive ultra vires. The validity of the subordinate or delegated legislation may be challenged before the Courts on this ground. It is a mechanism to curb down the exploitation of power by the administrative authority as we all know that “power corrupts and absolute power corrupts absolutely”. However in this field there is lack of development and there is no substantial change in the concept all though the changing nature of the current legislative method has widen the horizon of the power of the authority by giving them power to act according to the need of the time, even sometimes travelling beyond the restrictions.

There is no doubt that the institution of judicial review must be justified, as too must the heads of review and the particular meaning accorded to them. The ultra vires doctrine conceived in terms of legislative intent cannot provide this. We should recognize what were self-evident to our intellectual ancestors that review is the creation of the common law. We should recognize also that the ambit of review can only be legitimated in the same way as other common law powers, by asking whether there is a reasoned justification which is acceptable in normative terms for the controls which are being imposed. The institution of judicial review both demands and legitimation in this manner.           

BIBLIOGRAPHY 

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  1. The Constitution of India, (Commercial Law Publishers (India) Pvt. Ltd, 2019)

SCC Journal

  1. Law Commission Reports
  2. The Supreme Court Case, (Volume 10, Eastern Book Company, 2015)

Articles

  1. J. Lanham, Delegated Legislation and Publication: The Modern Law Review (Vol. 37, No. 5)
  2. Dawn Oliver, Is the ultra vires the basis of judicial review (Public Law, Craig, 1987).
  3. Elliott, The ultra vires Doctrine in a Constitutional setting (Volume 58, Issue 1, Cambridge Law Journal, 1999)
  4. Lord Woolf of Barnes, Droit Public-English Style (1995, Public Law, Cambridge University)
  5. Schwartz, Administrative Finality in England (26 Can BR 1948)
  6. The Indian law Institute, Delegated Legislation in India (India Times, New Delhi, 194)

Online Sources

  1. Blake Houghton, ‘Doctrine of Ultra Vires’ (Prezi, 2 October 2011) <https://prezi.com/qh2qssytur0x/doctrine-of-ultra-vires/> accessed 21 May 2020.
  2. C Forsyth, ‘Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review’ (Cambridge University Press, Vol. 55, No. 1, 1996) < https://www.jstor.org/stable/4508172?seq=1#metadata_info_tab_contents> accessed on 3rd April 2020.
  3. P Craig, ‘Ultra Vires and the Foundation of Judicial Review’( The Cambridge Law Journal, Vol. 57, No. 1, 1998) <http://www,jstor.org/stable/4508421> accessed on 2nd April 2020.
FOOTNOTES

[1] Blake Houghton, ‘Doctrine of Ultra Vires’ (Prezi, 2 October 2011) <https://prezi.com/qh2qssytur0x/doctrine-of-ultra-vires/> accessed 21 May 2020.

[2] Agarwal Ayengar & Co. v. State [1951] AIR 397 (Bom).

[3]  Att. Gen. v. Great Eatern Railway [1921] 5 AC 472.

[4] Darshan Singh v. State of Punjab [1953] AIR 83 (SC).

[5] Harishnkar Bagla v. M.P. [1954] AIR 465 (SC), also see, M.L. Bagga v. Murhar Rao [1956] AIR 35 (Hyd).

[6] State of Tamil Nadu v. P. Krishnamurthy [2006] 4 SCC 517.

[7] H.W.R. Wade & C.F. Forsyth ‘Administrative Law’ (9th edn, 2004. Oxford University Press) 56.

[8] Agricultural Market Committee v. Shalimar Chemical works [1997] AIR 2502 (SC). Also see, State of Rajasthan v. Basant Nahata [2005] 12 SCC 77.

[9] Indian Council of Legal Aid and Advice v. Bar Council of India [1995] AIR 1761 (SC).

[10] Atlas Cycle Ltd v. State of Haryana [1972] AIR 121 SC.

[11] Kunj Behari La; Butail v. State of Hinmachal Pradesh [2000] AIR 1069 (SC).

[12] A.K. Roy v. Union of India [1982] AIR 710 (SC).

[13] Laghu Udhyog Bharti v. Union of India [1999] 6 SCC 418.

[14] Kerala Samsthana Chethu Thozhilali Union v. State of Kerala  [2006] 4AIR 3480 (SC).

[15] Durga Chand v. Union of India [1979] AIR 249 (Del).

[16] Rajnarain v. Chairman , Patna Administration Committee [1954] AIR 569 (SC).

[17] State of Tamil Nadu v. P. Krishnamurthy [2006] AIR 1622 (SC).

[18] B.D. Gupta v. State of Uttar Pradesh [1991]AIR 526 (SC).

[19] Jagdish Prasab Sinha v. Bhagwat Prasad [1989] AIR 1794 (SC).

[20] State of M.P. v. Mahalaxmi Fabrics Mills Ltd [1995] AIR 2213 (SC).

[21] McEldowney v. Forde [1969] 2 All ER 1039.

[22] Mixam Properties Ltd v. Chertsey v. D.C. [1964] 1 QB 214.

[23] State of M.P. v. Mahalaxmi Fabrics Mills Ltd [1995] AIR 2213 (SC).

[24] Air India v. Nargesh Meerza  [1981] AIR 1829 (SC).

[25] Yadav v. State of Haryana [1987] AIR 545 (SC).

[26] M. P. Jain , Indian Constitutional Law (5th Edn, 2006).

[27] Hukum Chand v. Union of India [1972] AIR 2427 (SC). Also see, Veneet Agrawal v. union of India [2007] AIR 351 (SC).

[28] Ashok Lanka v. Rishi Dikshit [2006] AIR 2382 (SC).

[29] M. P. Jain, Principles of Administrative Law (6th edn, LexisNexis, 2011)162.

[30] Blackpool Corporation v. Loacker [1948] 1 KB 349. See Also, LIC of India v. Retired LIC Officerssociation [2008]  AIR 1485 (SC).

[31] Harishankar Bagla v. State of M.P. [ 1954] AIR 331  (SC).

[32] W.E.R. Wade and C.F. Forsyth, Administative Law (8th edn, 2000) 35.

[33] Lord Woolf of Barnes, ‘Droit Public-English Style’[1995] Public Law 57 at

[34] Schwartz, Administrative Finality in England, 26 Can BR 1948.

[35] Minister of Health v. the King, ex parte Yaffe [1931] AC 44.

[36][36] A.G. v. Ryan [1980] AC 718.

[37] State of Kerala v. Abdulla and Co. [1965] AIR 1585 (SC).

[38] General Officer, Commanding-in-chief v. Shubhadh Chandra [1988]  AIR 876 (SC).

[39]C.K.Takwani, Lectures on Administrative Law (5th edition, Eastern Book Company, 2012) 143.

[40] Ibid

[41]BanwaruLal v. State of Bihar [1961] AIR 58 (SC).

[42]Sitapur Municipality v. PrayagNarain [190] AIR 58 (SC).

[43] Ibid

[44] Procedural Deviance of Delegated Legislation from Parent Act

[45] D. J. Lanham, Delegated Legislation and Publication: The Modern Law Review (Vol. 37, No. 5) 510.

[46]Raza Buland Sugar Co. Ltd v. Municipal Board [1962] AIR 83 (ALL).

[47]Gvindlal ChhagganLal Patel V. The Agricultural Produce Market Committee, Godhra And Others [1976]  AIR 263 (SCR).

[48]Harla  v State of Rajasthan [1951]  AIR 1951 468 (SC).

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