PROCEDURAL CONTROL OF DELEGATED LEGISLATION

PROCEDURAL CONTROL OF DELEGATED LEGISLATION

SUBMITTED TO PROF DR. ASAD MALIK

SUBMITTED BY MOHD. AADILROLL NO. 303RD YEAR

ACKNOWLEDGEMENTRetake this opportunity to express my profound gratitude for the personal involvement and constructive thinking provided beyond the practical knowledge during the project by PROF. Dr. ASAD MALIK who channelized my raw ideas and gave me the encouragement. Without her help it would have been difficult for me to reach the position which I have accomplished.

REGARDS Mohammed Aadil

TABLE OF CONTENT 1) Delegated Legislation Meaning.2) Growth Of Delegated Legislation.3) Control Of Delegated Legislation.4) Procedural Control Of Delegated Legislation.5) Method Of Controlling Delegated Legislation6) Prior Publicity Of Legislation.(A) Position In U.K(B) Position In U.S.A.(C) Position In India.7) Consultation Of Interest.(A) Position In U.K.(B) Positioin In U.S.A.(C) Position In India.8) Publicity Of Delegated Legislation.(A) ) Position In U.K.(B) Positioin In U.S.A.(C) Position In India

CasesAliseb Husensab Hulkoti V State Of Karnataka AIR 1980 NOC 110 (KANT)Aruna roy v. Union of india AIR 2002 SC 3176Bangalore University v. St. John,s Medical College AIR 1980 KART 142Bangalore W.C. & S. Mills Co. v. Bangalore Corporation AIR 1962 SC 562Banwarilal agarwala v. State of Bihar AIR 1961 SC 841Blackpol Corporation v. Locker (1948) I KB 349D. B. Raju v. H.J. Kantharaj AIR 1990 2 SC 178G. Narayan Reddy v. State of A.P (1975) 35 STC 319Govindlal v. Agricultural Produce Market Committee AIR 1966 SC 263Harla v. State of Rajastha AIR 1951 SC 461Joint Chief Controller of Imports v. Aminchand AIR 1965 SC 546Lachmi Narain AIR 1967 SC 714Lim Chin Aik v. The Queen (1963) AC 160 Narender Kumar v. U.O.I AIR 1960 SC 430New Industrial Corporation V. Union Of India AIR 1980 DEL 277P.V. Shivarajan V. Union of India, AIR 1959 SC 556Panama case 293 US 384Queen v.sheer metal crafts ltd 1 QB 586Rajendra agricultural university v. Ashok kumar Prasad AIR 1954 SC 569Rajnarain Singh v. Chairmain P.A Committee AIR 1954 SC 569Raza buland sugar co . v. Rampur muncipilatyAIR 1965 SC 895State of Maharashtra v. M.H George AIR 1965 SC 722Tata iron and steel co. Ltd v. Workmen A.I.R 1972 SC 1917Tulispur sugar co. v. Notified area committee AIR 1980 SC 882 Vasanlal Maganbhai v. State of Bombay , AIR 1961 SC 4, PARA 4,P.7

ADMINISTRATION LAWPROCEDURAL CONTROL OF DELEGATED LEGISLATIONIntroductionAccording to the traditional theory, the function of the executive is to administer the law enacted by the legislature, and in the ideal state the legislative powers must be exercised exclusively by the legislature who is directly responsible to the electorate. Apart from the pure administrative function executive also performs legislative and the judicial function also. In England theoretically it is only parliament, which can make laws. Even in the United States of America where the doctrine of the delegated legislation has not been accepted in principal, in practice the legislature has entrusted legislative powers to the executive. Administrative legislation met with a rapid growth after World War II and in India during 1973 to 1977.DELEGATED LEGISLATION MEANING- A trend very much in the vogue at the present time in all democratic countries is that only a relatively small part of the total legislative output emanates directly from the legislature. The bulk of the legislation is promulgated by the executive as a delegate of the legislature and this is known as delegated legislation as that which proceeds from any authority other than sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority[footnoteRef:2] [2: See salmond, jurisprudence .12th Edn, p. 116]

Usually, what happens is that the legislature enacts a law covering only the general principles and policies relating to the subject matter in question, and confers rule- making power on the government, or on some other administrative agency. The delegation of legislation power is permissible only when the legislation policy is adequately laid down and the delegate is empowered to carry out the policy within the guidelines laid down by the legislature.[footnoteRef:3] [3: Tata iron and steel co. Ltd v. Workmen A.I.R 1972 SC 1917]

In no democratic does the legislature monopolise the whole of legislature power, it shares this power with the government and other administrative agencies. It is now well established proposition of law that the power of delegation is a constituent element of legislature power as a whole and that in modern times legislature enacts laws to meet the challenge of socio-economic problems. The legislature often finds it convenient and necessary to delegate subsidiary or ancillary powers to delegate of their choice for carrying out policy laid down in this act[footnoteRef:4]. [4: Vasanlal Maganbhai v. State of Bombay , AIR 1961 SC 4, PARA 4,P.7]

The term delegated legislation used in two different senses;(a) The exercise by a sub- ordinate agency of the legislature power delegated to it by the legislature. Or(b) The subsidiary rules themselves which are made by the sub-ordinate agency in pursuance of the power as mentioned in (a).As administration lawyers, we are more interested in the technique rather than the actual rules made, and so the term delegated legislation is used primarily in the first sense.In India quite often the term employed is subordinate legislation. This term conveys the idea that the authority making the legislation is sub-ordinate to the legislature. The technique of delegated legislation is often very extensively used in India. Two illustrate will suffice;(a) The imports and exports (control) act, 1947 is a small piece of legislation containing eight sections.S.3 authorises the central government to prohibit or restrict the import or export of goods of any specified description by order.Under this provision, the central government has built up a vast mechanism of control over imports and exports through delegated legislation promulgated under the statute.(b) Under the essential commodities act, 1955, the central and state government have promulgated a large no. Orders and rules. The act in itself is a small piece of legislation containing only 16 section, but under it the government carries on the whole operation of controlling and regulating production, movement ,supply, sale, and prices of a number of commodities characterised as essential commodities.Delegated legislation (in the second sense mentioned above) is designated by several names, such as, rules,regulation,bye-laws,order.etc, thought the term rules is more commonly employed. The terms regulation and bye-laws are usually used to denote the legislation framed by statutory corporations under delegated legislative power.At times , a statue may use several terms to denote delegated legislation made there under.for instance, in the income-tax act. 1961, the powers to issue orders notification and rules are spread over a number of section.e.g;(i) a general power on to make rules for several matters is conferred on the central board of direct taxes by s. 295;(ii) under section 121 to 124, distribution and allocation of k to be performed by various tax authorities may be made through orders.(iii) under section 80-j (7) the central government through a notification in the official gazette may take away an exemption granted under the section from certain newly established undertakings; and (iv) s. 80-k speaks of the rules with reference to tax on dividend from newly established undertakings or hotelsThe essential commodity act, 1955 uses three terms- order, notified order and notification- which the central government can make in exercise of the powers delegated to it under the act. Factors leading to the growth of delegated legislation- According to the Committee On Ministers Powers (CPM) or donoughmore committee the factors responsible for growth of delegated legislation are;(A) Pressure Upon Parliamentary Time- the affairs of modern state are increasingly day-by-day,due to the expanding horizons of the welfare state activity, making it almost impossible for the legislature to devote time to all the legislative details. Therefore, the legislature formulates the general policy i.e, the skeleton and empowers the executive to fill in the details, thus giving flesh and blood to skeleton so that it may live by issuing necessary rules, regulation, bye-laws etc. E.g in information technology act, parliament has only laid out the basic policy and rule making power is given to the executive.(B) Technicality Of Subject Advisor- sometimes subject matter on which the legislature has to pass legislation is of technical nature, that the legislature being himself a common man cannot be expected to appreciate and legislate on the same, and the assistance of an expert may be required. Therefore, the legislative power may be conferred on experts to deal with the technical problems e.g, antibiotic banning on the recommendation of Indian medical council, electricity matters etc(C) Contingency Provision at the time of passing any legislation enactment it is impossible to foresee all the contingencies and some provision is required to be made for unforeseen situations demanding exigent action. Legislation but ame ndment being a slow and cumbersome process, the difficulty is sorted out by delegation of this job to the executive that can be meet the situation expeditiously.e.g. Export and import policies, foreign exchange, police regulation . Terrorist activities, bank rate, share, market etc.(D) Experiment -Supreme legislation is rigid but delegated legislation is flexible. So. The practice of delegated legislation enables the executive of to experiment. This method permits rapid utilisation of experience and implementation of necessary changes in application of provisions in the light of such experience e.g traffic problems,tax filling etc.(e) Emergency Measure during the breakdown of war or break down of law and orderwiths, epidemics,flood etc. The legislature cannot meet at short notice, so the executive is vested with special and extremely wide power in form of delegated legislation to cope with such situation.Because of this factors ,administarative legislations are sometimes called delegated legislation. It has become necessary and indispensable. Controls The controls over delegated legislation operate two level;(a) at the point of delegation of power by the legislature.The question here is; how much power should the legislature be permitted to delegate . this is known as pre-natal control. The question at this stage is whether the legislature should be free to delegate any amount of legislative power to the or the legislature should be restrained in this respect .(b) at the point of exercise of delegation power by the administration.The question whether here is subject to what restraints and safeguards should be delegate function in exercising the delegated legislative powers , in short, what control-mechanism should be put into being as to minimize the hazards of the technique of delegated legislation? This is known as post- natal controlIt may be noted that both levels of control are supplementary to each other. The efficacy of the control at the second stage, to a large extent, depends che first .if the legislature confers power subject to certain norms and standards, then the exercise of the power can be tested in the light of those standard, may be checked by avoiding the delegated legislation produced by the delegate by applying the doctrine of ultra vires.CONTROL OF DELEGATED LEGISLATION -Today, The Question is not Whether The Delegated Legislation is Desirable or not but it is what Controls and Safeguards Can be Introduced so that the power Conferred Is Not Misused In Order To Ensure That The Power Of Delegated Legislation Misuse, It Has Been Subjected To The Three Folds Controls. These Modes Of Controls May Be Classified Under The Following Heads.(1) Procedural Control.(2) Parliamentary Control.(3) Judicial Control.Judicial Control May Further Be Divided In The Following Manner :(a) Doctrine of ultra vires which includes substantive as well as procedural ultra vires.(b) Use of prerogative writsControl

Procedural control Parliamentary control Judicial controlPROCEDURAL CONTROL it is not possible for the parliament to exercise effective control over delegated legislation. Therefore certain control over delegated legislation. Therefore certain procedural safeguards have been provided which are relevant to keep constant watch over the exercise of this power by the administration authorities. Cecil Carr puts great emphasis on this mode of control. He suggest the following five points.-(1) The authority exercising delegated legislation should be identifiable and trustworthy;(2) The limits of delegated authority should be clearly defined;(3) The interests likely to be affected should be consulted;(4) The rules, etc. Should receive enough publicity;(5) There should be a provision for revocation or amendment of the rules. These requirements are made necessary for the exercise of the legislative powers delegated to the executive to the varying extents under different statutes. The method of procedural control can be studied under the following heads:(1) Prior Publicity of proposed rules and regulations (Anti-Natal Publicity)(2) Prior consultation of interests likely to be affected by proposed delegated legislation(3) Publication of delegated legislation.Prior publicity of Proposed Rules and Regulations(Anti- Natal Publicity)- Procedural safeguard against delegated legislation is natal publicity of proposed rules and regulation so that the persons to be affected by regulation may know before hands and make representation if they are aggrieved.Position in America In America there is wide spread use of the technique of anti natal publicity .the system of anti-natal publicity is provided for in the American Administrative procedure control act, 1946. Section (4) of the act requires general notice of the proposed rulemaking to be published in the federal register. It should be noticed that the procedural requirement prescribed by section 4 of the America need not be invariably be followed in every case of rule making. Position in England the system of anti-natal publicity was provided for in Britain in the section 1 of the rules of publications act,1893. Under this section public notice was given at least 40 days of proposals to make statutory rules and department concern has to be considered representation or suggestions made by interested bodies who were thus made aware of proposed rules of which they otherwise might not have known. The statutory instrumental act,1946 which takes the place of the rules of publication act, 1893 omits the anti- natal safeguards of the earlier statute.Position in India .India the practice of prior publication has been adopted wherever prior consultation has been deemed necessary. According to section 23 of the general clauses act, 1897, the authority shall publish the draft rules for information of affected interest in such manner as it deems sufficient. The effect of the expression previous publication according to section 23 of the general clause act, is that-(1) The rule-making authority shall publish a draft of the proposed rules for information of the affected interest;(2) The publication shall be made in such manner as the authority deems sufficient;(3) There shall be published with the draft rules a notice specifying a date on or after which the draft will be taken into consideration; and(4) The authority shall take into consideration any objection or suggestion which may be received by it while finalising the rules.The technique of previous publication defers the effectuation of the rules for sometimes and gives opportunity to the interested parties to have their say in the matter.The authority shall take into consideration any such object or suggestion which may be received by it while finalising the rules. It is noteworthy that in India the number of statutes in which the condition of prior publication is provided is not many. It has been stated that not more than sixty central statutes existing until 1960 lay down condition of giving antecedent publicity to the rules made there under act[footnoteRef:5]. Some of the statutes provided for anti- natal publicity. Section 43 of the co-operative societies act, 1912, section 30(3) of the charted accountants act, 1949 and section 15 of the central tea board act,1949. Provide example where it is required that the rules must first be published in draft to make / give an opportunity to the people to have their say in the rule-making. [5: The Indian law institute study on delegated legislation in India (1964), p.,341 ]

CasesNew Industrial Corporation V. Union Of India[footnoteRef:6]- indicates that the government could avoid many pitfalls, arising out of ignorance, through consultation .here the Delhi high court found the rules involved to be arbitrary and violation of art 19 (1) (g). The court emphasised that such a situation could have been avoided had the governme nt followed the process of consultation. [6: AIR 1980 Del 277]

Aliseb Husensab Hulkoti V State Of Karnataka[footnoteRef:7] the Karnataka high court has ruled that the persons likely to be affected by the promulgation of the rules have reasonable opportunity to go through the draft rules and file their objections and suggestions. Where only four days were given for filing objections and suggestions, there was really a denial of opportunity of reasonable opportunity to persons likely to be affected thereby. The opportunity to be afforded should be adequate and reasonable and should not be a sham, nominal or illusory. [7: AIR 1980 NOC 110 (KANT)]

Pre-publication procedure mandatoryStatutes do at times prescribe the condition of pre-publication of draft rules, other than by was of previous publication noted above.The court tend to regard the condition of pre-publication of draft rules prescribed in a statute as mandatory. However if the requirement of pre- publication has been complied with substantially , there may be some minor elements of the procedure prescribed in the statute which may be characterised as directory, and minor deviation there from may not invalidate the rules made. A few example may be cited here from the case- law to illustrate these points.Cases Rajnarain Singh v. Chairmain P.A Committee [footnoteRef:8] a provision authorising the affected persons to file objections against any taxation measure imposed by a municipal body wad regarded as a matter lying within the power of the legislature and not of the executive to tamper with. [8: AIR 1954 SC 569: (1955) 1 SCR 290.]

Lachmi Narain [footnoteRef:9] three months notice to effect a modification in the schedule annexed to the sales tax law was held to be mandatory, as well as a matter of legislative policy. One of the reasons favouring this view was that it was necessary that dealers and others likely to be affected by the proposed amendment might have sufficient time and opportunity for making representation, objections or suggestions in respect of the intended amendment. [9: AIR 1967 SC 714]

Raza buland sugar co . v. Rampur muncipilaty [footnoteRef:10]- In this case the statute required pre-publication of a resolution passed by the municipality in a newspaper published in Hindi. The municipality published the resolution in a paper published in Urdu. It was contended the requirement of its publication has not been fulfilled but the court rejected the contention and held that what is material is publication not the manner of publication. [10: AIR 1965 SC 895]

Tulispur sugar co. v. Notified area committee[footnoteRef:11] the supreme court observed that under by 3of the act being in the nature of the sub-ordiante legislation, it was the duty of the state government to follow the same procedure which was applicable to the promulgation of rules under section 39 of the act. The sub section (3) of section 39 of the act which provided that the power to make rules under the said provision was subject to the condition of the rules being made after previous publication. [11: AIR 1980 SC 882]

Rajendra agricultural university v. Ashok kumar Prasad [footnoteRef:12] S.C observed that once a law lays down publication of a statute in the official gazette a part of the process of making a statute, the object of making such a provision for publication recedes into the background and becomes irrelevant, and on the other hand, fulfilment of the requirement to make public the statute by publication in the official gazette becomes mandatory and binding. [12: AIR 1954 SC 569]

Departmental Practice regarding prior consultation of interests-An important measure to check and control the exercise of power of delegated legislation is the technique of consultation through which affected interest may participate in rule making. Wade and Phillips rightly observed one way of avoiding a clash between the department exercising legislative power and interest most likely to be effected is to provide for some form of consutationPosition in England- in England, though there is no statutory provisions requiring consultation of interest before the making of sub-ordinate legislation, it is considered mandatory. Sir Cecil Carr states: it is unthinkable that any important rules would be made about solicitor in England without consulting the law society or about doctors, without consulting the British medical association or about the local government without consulting the country council association and the association of municipal corporationsPosition in America- the technique of consultation of interest is very much in common use in the United States. Under the administrative procedure act, 1946. There are detailed provisions for consultation requiring that interested persons should be given an opportunity to participate in the rule making process. Section 4 requires the rule making authority to consult the interest likely to be affected are given an opportunity by the rule making authority to participate in the rule making process. The agency will consider the written data, views arguments etc. Of those persons and finalise the rules.Position in India-In India there is no general provision of law, requiring the consultation of the affected interest in the process of rule making where consultation is required, such words as the power to make rules shall be subject to the condition of previous publications are inserted in the parent Act. Section 23 of the General clauses Act, 1897 provides that whenever the term previous publication is condition precedent for making the rule the following will follow:(1) The authority shall publish the draft rules for the information of the affected interests:(2) The publication shall be made in such manner as the authority deems sufficient;(3) There shall be published with the draft rules a notice specifying a date on or after which the draft will be taken into consideration;(4) The authority shall take into consideration any objection or suggestion which may be received by it while finalising the rules.Thus this technique would result in the postponement of the enactment of the rules and give an opportunity to the interested parties to represent theie viewpoints in the manner of the rule-making authority.The practice of prior consultation of interests likely to be affected by delegated legislation has been held to be mandatory.Cases Banwarilal agarwala v. State of Bihar[footnoteRef:13]-the supreme court has held section 59 of the mines Act, which requires reference of draft legislations to mining boards in order to consult them is mandatory and regulation made in contraventions of this requirements would be invalid. It is only consultation which is necessary, the rule-making authority is not bound to abide by the recommendations made it by the concerned interests.[footnoteRef:14] [13: AIR 1961 SC 841] [14: P.V. Shivarajan V. Union of India, AIR 1959 SC 556]

Aruna roy v. Union of india [footnoteRef:15] if consultation is thought to be advisable the particular parent act must prescribe it through a statutory provision. In the absence of any statutory requirement, consultation cannot be claimed by anyone as mater of right. Consultation can be claimed if statutory provision warranting the same. [15: AIR 2002 SC 3176]

Rajnarain V. Chairmain, Patna Administration Committee[footnoteRef:16]- when consultative procedure is prescribed by a statutory provision, it is usually regarded as mandatory. For example, when the act prescribe that before an administrative body levies a tax the people will have a right to file objections against the tax levy and to be heard the provision is mandatory. [16: AIR 1954 SC 569]

It is notable that in some statutes provisions are laid down conferring the power on the affected interests to initiate and frame rules themelves. For example, Section 9-A of the forward contracts (regulation) Act, 1952 authorised the recognised association to make rules with respect to several matters mentioned therein. These rules become effective after having been approved by the central governmental. The governmental can also make such modification as it deems fit.Publication Of Delegated Legislation- it is fundamental principle of law that theignorantia juris non excusat(ignorance of law is no excuse), but there is sanother equally established principle of law that the public must access to the law and they should be given an opportunity to understand the lawpublication of any law, rule or regulation, is extremely necessary to ensure full justice to the public. Laws should be ascertainable and clear to the persons who are to be affected by it. They should be amply published, so that it may not come to the public as a surprise. If it is not known to the persons, it would not be possible for them to regulate their conduct accordingly. It is therefore necessary that rules and regulations made by administrative agencies are published.Position In England- in great Britain all the statutory instruments are published by stationary officer having laid before the parliament. They contain the date on which they come into force. Section 2(1) of the statutory instruments act, 1946, requires that immediately after the making of any statutory instruments it shall be sent to queens printers and numbered and unless otherwise provided by subsequent acts or by regulation made under the act of 1946, copies of the instrument shall as soon as possible be printed and sold by the queens printers. Her majestys stationary officer is required to publish from time to time a statutory instruments issue list showing the number and name of each new instrument within the period and the date of the issue. An annual edition of statutory instruments is published. It contains all rules, regulations and orders and other instruments made by the sovereign, a minister and a government department.Cases Blackpol Corporation v. Locker[footnoteRef:17] it was stated that the maxim that ignorance of law does not excuse any subject represents the working hypothesis on which the rule of law vests in British democracy. In the aforesaid decision the statutory instruments act of 1946 which came into force in 1948 was also criticized as it does not extend to sub delegated legislation. [17: (1948) 1 KB 349]

Lim Chin Aik v. The Queen [footnoteRef:18] the question which arose for consideration before the privy council was whether a person could properly be convicted for an offence of remaining in Singapore while the subject of an order prohibiting his entry if he was unaware about the existence of the order. It was held that offence required the proof of mens rea and argument of the crown that the ignorance of law is no excuse was rejected. [18: (1963) AC 160.]

Queen v.sheer metal crafts ltd[footnoteRef:19] an iron and steel prices order was published bur schedule appended thereto were not published. It was held that non publication of schedule sis not invalidate the order, as provisions for printing and publication wee held to be procedural. [19: (1954) 1QB 586]

Position in America- in the u.s, before 1935, there was no procedure for publications of rules. This disclosure of the unsatisfactory state of affairs and the resulting uproar, led the congress to press federal register act, 1935 section (1) provides that all the rules which are required to be published under federal register unless it is published, it cant be enforced against anyone except who has actual notice of it. The provision for publication of delegated legislation were further strengthened by enacting the administrative procedure act, 1946 section 4(c) defers effectively of the rules by 30 days from the date of publication so that everyone get an opportunity of knowing them.Panama case[footnoteRef:20] where the United States o supreme court found that the inadequate publicity, the industry, the enforcement officers, the lower courts were all unaware that a NRA regulation on which the proceeding were based in the case had been revoked. [20: 293 US 384]

Position In India- in India there is no general provisions requiring or regulating publication of delegated legislation. But there is a general practice to publish them in the gazette of India. Sometimes parent statue also provide for their publication in the gazette. No attempt has been made in India to codify the regularly on the pattern of American code of federal register .the government of India commenced in 1960 publications of various rules in a codified form. but its progress is quite slow and the volumes so far codified up to date do not contain any annual supplements.Publication of the delegated legislation in the gazette has several advantages.(a) it gives authenticity to the rules and settle the issue as to whether they have duly made;(b) the individuals can have an easy access to the rules for they can easily locate them.CasesHarla v. State of Rajasthan[footnoteRef:21]- the council by resolution enacted the jaipur opium act which made rule that if person carried opium beyond the certain limit then it was an offence committed and penalty had to be imposed on the accused but the said act was never publicised. A person harla was prosecuted for the conviction of this law because he was in possession of opium in more quantity than permitted. He contended that it was case of procedural ultra vires. [21: AIR 1951 SC 467]

The supreme court set aside his conviction and declared the statute devoid of any force. Court held as follows-it is principle of natural justice that the laws should be made known to the public. It should be properly made and published. Publicity and accessibility requirements of natural justice and they must be complied with. Therefore, in order to give legal force to any act or instrumental including rules, regulation, etc . it is necessary that they should be published and made known to the publicNarender Kumar v. U.O.I[footnoteRef:22]- section 3 of essential commodity act,1955 required all the rules to be made under the act to be notified in the official gazette. The principles applied by licensing authority for issuing permits for the acquisition of non-ferrous metals were not notified. The S.C held the rules ineffective [22: AIR 1960 SC 430]

State of Maharashtra v. M.H George[footnoteRef:23]- a notification was published in the gazette of India on 24 November 1962 prohibiting import of gold in India except on certain conditions. The respondent left Zurich on 27 November 1962 carrying gold with him and was arrested at the Bombay airport the next day. He pleaded his ignorance of the notification. negativing the contentions, the S.C held that the notification had been published and made known in India and ignorance pleaded by the respondent/accused was wholly irrelevant. [23: AIR 1965 SC 722]

Ayyanger J. In this case formulated guidelines regarding the mode of publication of delegated legislation.(1) Where there is statutory requirement as to the mode or form of publication and they are such that, in the circumstance, the court holds it to be mandatory, a failure to comply with those requirements might result in their being no effective order the contravention of which could be the subject of prosecution; but(2) Where is no statutory requirement, it is necessary that it should be published in the usual form i.e. by publication within the country as to generally adopted to notify all the persons the making of rules; and(3) in India publication in the official gazette, wiz, the gazette of India is the ordinarily method of bringing a rule or subordinate legislation to the notice of persons concerned.

Bangalore W.C. & S. Mills Co. v. Bangalore Corporation[footnoteRef:24]- The court upheld the impugned delegated legislation even though it was not published in the manner required under the statute. In this case the imposition of a tax by the municipality was questioned on the ground that it was not duly published. The tax was imposed as a result of the resolution passed by the municipality and published in the local newspaper. It was not published in the official gazette as required by the statute. But the Supreme Court upheld it in a view of a statutory provision that no act or proceeding not affecting the merits of the case. The court said that the above provisions cured the defect of improper publications of the delegated legislation. [24: AIR 1962 SC 562]

Joint Chief Controller of Imports v. Aminchand[footnoteRef:25]- the court held the import policy to be unenforceable against the individual as they were not published in the gazette of India according to the requirement of imports and exports control act, 1947. [25: AIR 1965 SC 546]

Govindlal v. Agricultural Produce Market Committee[footnoteRef:26]- provides good illustration on this point. In the case under the Gujarat agricultural produce markets act, 1964 the director of agricultural marketing was empowered to issue a notification to regulate purchase and sales of agriculture produce in any area. The notification was required to be pre-published in the official gazette and also to be published in the gujarati in a newspaper having circulation in the area concerned. Thus the final publication of the notification in a newspaper in a gujarati was mandatory. But in a instant case it was finally published in the gazette, but not in a gujarati newspaper. The court ruled that the requirements of its publication were mandatory and must be fulfilled. The court also elucidated the reasons for its being mandatory. According to chandrachud . j., a violation of this requirement is likely to affect valuable rights of traders and agriculturalist because in the absence of proper and adequate publicity, their right of trade and business shall have been hampered without affording to them an opportunity to offer objections and suggestion an opportunity which the statute clearly deems so desirable. [26: AIR 1966 SC 263]

D. B. Raju v. H.J. Kantharaj[footnoteRef:27]- the court went a step further by saying that even if the present statute does not provide for promulgation of delegated legislation it was necessary to publish it in order to make it enforceable under law. The court, observed that unlike parliamentary legislation which is publicly made, delegated legislation is often made undistinguishing in the chambers of a minister, a secretary to the government or other official dignitary and hence its publication is mandatory. [27: (1990) 2 SC 178,179.]

Hence the notification was held to have no legal validity and prosecution of the appellant could not be said to have been founded upon the breach of notification.A Statutory rule,etc., is deemed to have come into force From The Date its printing in the gazette. As a general practice the rules themselves mention the date of their coming into force. If the date of coming into force is subsequent to the publication, it is alright. But if the date is anterior to the publication, the rules may come into force from the date also unless it is held to be bad on the ground of retrospectivity.Sometimes it may also happen that dates are not mentioned in the rules.In such cases three possible dates may be taken into account alternatively:(1) The date on which they are made;(2) The date of their publication; or on(3) The date on which they are published, in case of the statutory requirement of their publication.G. Narayan Reddy v. State of A.P[footnoteRef:28]- the question arose about the actual date of publication of a government notification. In this case a government a notification increasing the rate of sales tax was published in the official gazette bearing 1 december 1966 as the date. It was actually received by the subscribers on 25 december . it, therefore, held that the government notification came into effect on 12 december , 1966 and not earlier. [28: (1975) 35 STC 319 (AP)]

Where the statute specificially requires the authority to specify the date on which it is come into operation, it does not come into force merely by its publication unless the date is specified.Bangalore University v. St. John,s Medical College[footnoteRef:29]- the university syndicate passed an ordinance which got published under the authority of vice- chancellor. But the date was not mentioned when it was come into force. Under the act it was required that the syndicate should specify the date on which came into effect. It was held that mere publication of the ordinance was not enough to bring into force. [29: AIR( 1980) KART 142]

It may be noted that there is no general statute requiring publication of the rules and orders. It would be desirable if some general provision is added to the general clauses act, 1897, on the lines of the statutory instruments act,1946, in England.The committee on subordinate legislation of the house of people has put great emphasis on the need of giving wide publicity to the rules made by the executive. it found that the ministry of law, government of India, publishes the rules made by it in the gazette of India and sends copies to the state government which are required to publish it with a view to giving them widest publicity other ministries of the government do not follow any set of principle but they have favoured an uniform procedure in this respect and have made following recommendations.(1) While making each rules and order the central government should decide whether it is of concern or importance to the general public(2) Advance copies of all rules and orders which are of importance to the general public should be sent to the state government concerned for arranging wide publicity in their states in the following manner;-(a) by publishing the rules and orders in the state gazette, and(b) publishing the translation of rules and orders in the recognised languages of the states in the state gazette.(c) the publication of such rules and orders should preferably be simultaneous at the centre and in the states.(d) press communiqus should be issued by the government to give publicity to the general report and effect of the rules and

Bibliography(1) Dr. U.P.D Kesari, Lectures Of Administrative Law, VIII ED. Central Law Agency Allahabad.(2) I.P Massey , Administrative Law,IV .Ed, Eastern Book Company Lucknow.(3) M.P. Jain & S.N Jain, Principles Of Administrative Law ,IV Ed. Wadhwa& Company, Nagpur. (4) D.D Basu, Administrative Law, VI Ed. Prentice Hall Of India, Private Ltd. N.D1 PROCEDURAL CONTROL OF DELEGATED LEGISLATION

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