Full Judgment Text
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PETITIONER:
RAJNARAIN SINGH
Vs.
RESPONDENT:
THE CHAIRMAN, PATNA ADMINISTRATIONCOMMITTEE, PATNA, AND ANOT
DATE OF JUDGMENT:
21/05/1954
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
MAHAJAN, MEHAR CHAND (CJ)
MUKHERJEA, B.K.
BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA
CITATION:
1954 AIR 569 1955 SCR 290
CITATOR INFO :
R 1957 SC 414 (13)
F 1958 SC 682 (11)
R 1958 SC 909 (7)
R 1959 SC 512 (7)
RF 1961 SC 4 (15)
RF 1963 SC 771 (32)
R 1965 SC1107 (22,81)
MV 1966 SC 693 (28)
RF 1967 SC1048 (20)
R 1967 SC1480 (3,5,9,19)
RF 1968 SC1232 (14,53,81)
RF 1973 SC1461 (227,450,566)
R 1976 SC 714 (29,38,57)
RF 1979 SC1475 (18)
RF 1980 SC 650 (5)
R 1982 SC1126 (9)
RF 1990 SC 560 (13,14,20,21)
ACT:
Delegation of Legislative power-Limit and extent of-Essen-
tial Legislative feature -Change of policy -Patna
Administration Act, 1915, (Bihar and Orissa Act I of 1915)
as amended by Patna Administration (Amendment) Act, 1928
(Bihar and Orissa Act IV of 1928) s. 3 (1)(f)-Whether intra
vires-Bihar and Orissa Municipal Act, 1922-Notification by
Governor-Beyond s. 3(1)(f) Ultra vires.
HEADNOTE:
An executive authority can be authorised by a statute to
modify either existing or future laws but not in any
essential feature. Exactly what constitutes an essential
feature cannot be enunciated in general terms but it is
clear that modification cannot include a change of policy.
Essential legislative function consists in the determination
of the legislative policy and its formulation as a binding
rule of conduct. Modifications which are authorised are
limited to local adjustments or changes of minor character
and do not mean or involve any change of policy or change in
the Act.
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Section 3(1)(f) of the Patna Administration Act of 19 15
(Bihar and Orissa Act I of 1915) as amended by Patna
Administration (Amendment) Act of 1928 (Bihar and Orissa Act
IV of 1928) is intra vires because any section or sections
of the Bihar Municipal Act of 1922 can be picked and applied
to Patna (whether with or without modification) provided
that does not eftct any essential change in the Act or alter
its policy and the words "restriction" and " modification"
are used in the restricted sense.
The notification dated 23rd April, 1951, by which the
Governor of Bihar picked s. 104 out of the Bihar and Orissa
Municipal Act of 1922, modified it and extended it in its
modified form to the Patna Administration and Patna Village
areas is ultra vires as it effects a radical change in the
policy of the Act and thus travels beyond the authority
conferred by s. 3(1)(f).
In re The Delhi Laws Act, 1912, etc. ([1951] S.C.R. 747)
applied.
JUDGMENT:
CiviL APPFLLATE JURISDIOTION: Civil Appeal No. 202 of 1953.
Appeal under article 132(1) of the Constitution of India
from the Judgment and Order dated the 22nd day of December,
1952, of the High Court of Judicature at Patna in
Miscellaneous Judicial Case No. 78 of 1952.
Basant Chandra Ghose (P. K. Chatterjee, with him) for the
appellant.
Mahabir Prasad, Advocate-General of Bihar, (S. P. Varma,
with him) for respondent No. 2.
1954. May 21. The Judgment of the Court was delivered by
Bose J.-The High Court of Patna granted the petitioner
before it leave to appeal under article 132(1) of the
Constitution on the ground that a substantial question of
law relating to the interpretation of the Constitution was
involved.
The appellant is the Secretary of the Rate Payers’
Association at Patna. He and the other members of his
Association reside in an area which was originally outside
the municipal limits of Patna and was not liable to
municipal and cognate taxation. On 18th April, 1951, this
area was brought within municipal limits and was subjected.
to municipal taxation. This was accomplished by a
notification of that date. By reason of this the appellant
and the others whom he represents were called upon to pay
taxes for the period 1 st April, 195 1, to 31st March, 1952.
The notifications were issued under sections 3(1)(f) and 5
of the Patna Administration Act of 1915 (Bihar and Orissa
Act I of 1915). The appellant claims that the notifications
are delegated legislation and so are bad and prays that
sections 3(1)(f) and 5 of the Act which permitted this
delegation be condemned as ultra vires.
In order to appreciate the points raised it will be
necessary to go back to the year 1911 when the Province of
Bihar and Orissa was formed. It will also be necessary to
bear in mind that we have to deal with three separate
sections in the area which is now called Patna. In order to
avoid confusion we will call them Patna City, Patna
Administration and Patna Village respectively. It must be
understood that this is a purely arbitrary nomenclature
adopted by us for the purposes of this judgment and that
they are neither so called nor so recognised anywhere else.
Their boundaries have not been static but it will be
necessary to keep them notionally distinct.
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292
When the new Province was formed in 1911 the Bengal
Municipal Act of 1884 applied to the whole of it. At that
time one of the three portions of Patna with which we are
concerned (namely, the portion we have called Patna City)
was under a Municipality (the Patna City Municipality)
created under the Bengal Act. This Municipality continued
to function in the Patna City area after the creation of the
new Province. The other two sections were not born as
distinct entities till later and the areas which they now
cover were not under any municipal or cognate jurisdiction.
The new Province required a new capital and Patna was chosen
for the purpose. Quite naturally the City expanded and,
following the general pattern in India, a new area grew up
(distinct from the old City) which housed the headquarters
of the new Government. Before long, it was thought
expedient to bring this area under municipal jurisdiction
and give it a municipality of its own rather than place it
under the old city municipality. Accordingly, the
Legislature of the new State passed the Patna Administration
Act of 1915 (Bihar and Orissa Act I of 1915) to enable this
to be done. This Act came into force on,5th January, 1916.
The petitioner impugns sections 3(1)(f) and 5 of the Act and
the notifications made under it on the ground that they
permit delegated legislation which has hurt him and wrongly
rendered him liable to municipal taxation.
Broadly speaking, the Act empowered the Local Government to
create a new municipality (later called the Patna
Administration Committee) for this new area which, in our
arbitrary classification, we have called Patna
Administration. The Act called this new area "Patna and
defined its boundaries in the schedule to the Act. This
area did not include either the section which we have called
Patna City or the one we have dubbed Patna Village.
Now the Legislature of this new State did not draw up a new
Municipal Act nor did it apply the existing Bengal Municipal
Act of 1884, which was at that time in force in the
Province, to this new area which the Act of 1915 called
"Patna" and which we have called
293
Patna Administration. Instead, by section 3(1)(f) it
empowered the Local Government to
"extend to Patna the provisions of any section of the said
Act" (the Bengal Municipal Act of 1884) " subject to such
restrictions and modifications as the Local Government may
think fit."
This is a part of the impugned portion. Section 5, which is
also impugned, runs-
"The Local Government may at any time cancel or modify any
order under section 3."
Section 6(b) is also relevant, though it is not challenged.
It says, omitting unnecessary words, that-
"The Local Government may ..................................
;
(b) include within Patna any local area in the vicinity of
the same and defined in the notification."
We refer to this here because the area we have called Patna
Village *as later brought under the jurisdiction of a new
municipality called the Patna Administration Committee by
action taken under this section.
Armed with the powers which this Act conferred, the Local
Government created the new Municipality and called it the
Patna Administration Committee and, by a series of
notifications with which we are not concern ed, extended
certain sections of the Bengal Municipal Act of ’1884 to the
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area which we have called Patna Administration.
The result of all this was that up to 1922 there was in
existence the Patna City Municipality with jurisdiction over
the area we have called patna City : the whole of the Bengal
Municipal Act of 1884 applied there. Side by side was the
new municipalty called the Patna Administration Committee
holding way over the new area which we have called patna
Administration. The Bengal Municipal Act did not apply to
this area of its own force; only certain sections which the
Local Government had picked out under powers conferred by
the Patna Administration Act Of 1915 were applied there.
The third area, which we have called Patna Village, and
which is the area which really concerns us, was free from
municipal control.
294
In 1922 the Provincial Legislature enacted the Bihar and
’Orissa Municipal Act, 1922 (Bihar and Orissa Act VII of
1922). It repealed the whole of the Bengal Municipal Act-of
1884 and substituted the new Act of 1922 for it. This only
affected the Patna City area and did not affect the Patna
Administration area because the Bengal Act was never applied
to that area as such. The portions of it which were picked
out to have force there were applied by reason of the Patna
Administra tion Act, 1915, and that constituted, in truth
and in fact, independent legislation. The result was that
the new Act of 1922 came into effect in the Patna City area
and the sections of the Bengal Act which were applied by
reason of the Patna Administration Act continued in force in
the Patna Administration area. The area which we have
called Patna Village was still unaffected.
Understandably, the new Province preferred its own
legislation to that of Bengal. But despite the passing of
the Bihar and Orissa Municipal Act in 1922, the Local
Government, acting under section 3(1) (f) of the Patna
Administration Act, 1915, could only extend sections of the
Bengal Act to the Patna Administration area and not sections
of its own Act. This was because of section 3(1) (a) whose
provisions we need not examine. To set this right the Bihar
and Orissa Legislature passed an amending Act in 1928 (Bihar
and Orissa Act IV of 1928) called the Patna Administration
(Amendment) Act of 1928. But that only provided for the
future. So far as the present and the past were concerned,
section 4 of the amending Act provided-
,, Any section of the Bengal Municipal Act, 1884, extended
to Patna under clause (f) of sub-section (1) of section 3 of
the said Act " (that is, the Patna Administration Act, 1915)
" shall be deemed to continue to extend to Patna until the
extension of such section to Patna is expressly cancelled by
notification."
Three years later, the Governor cancelled all previous
notifications extending sections of the Bengal Act of 1884,
and the Bihar and Orissa Act of 1922, to the Patna
Administration area. In their places he picked out certain
sections of the Bihar and Orissa Act of 1922,
modified;others, and extended the lot so selected and
295
modified to the Patna Administration area. This was done by
Notification No. 4594 L. S. G. dated 25th April, 1931. It
gave a sort of fresh Municipal Code to this area. There
were, however, significant differences between this and the
Act of 1922; for example, sections 4, 5, 6, 84 and 104 of
the Act of 1922 were omitted altogether.
Nothing further happened, till 1951. In the meanwhile, the
Constitution of India came into force on 26th January, 1950.
We refer to this because before the Constitution the Local
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Government was empowered to act under section 3(1) (f) and
section 6(b) of the Patna Administration Act, 1915. After
the Constitution these powers were transferred to the
Governor of Bihar.
During this interval Patna was expanding and the area which
we have called Patna Village, originally just a village
area, began to be built upon It adjoined the Patna
Administration area only a road separated the two. It was
therefore felt that this should also be brought under
municipal control. But instead of creating a third
municipality the authorities thought it best to place it
under the jurisdiction of the Patna Administration
Committee. Here again, instead of legislating direct they
fell back on the Patna Administration Act, 1915, as amended
in 1928. On 18th April, 1951, a notification was published
in the Gazette by order of the Governor of Bihar. It is
Notification No. MVP-45/50-3645 L.S.G. dated 11th April,
1951. It runs as follows:
" In exercise of the powers conferred by clause (b) of
section 6 of the Patna Administration Act,, 1915, (Bihar and
Orissa Act I of 1915), the Governor of Bihar is pleased to
"declare that the area defined below is included within
Patna........................
The area referred to is the third of the areas we are
considering, namely the one we have called Patna Village.
The effect of this was to bring Patna Village under the
municipal control of the ’Patna Administration Committee.
Five days later, the Governor of Bihar picked section 104
out of the Bihar and Orissa Municipal Act of
296
1922, modified it and extended it in its modified form to
the Patna Administration and Patna Village areas. This was
by Notification No. M/Al-201-51-406 L.S.G. dated 23rd April,
1951. The modified version -ran as follows:
" 104. Assessment of taxes-When the Patna Administration
Act, 1915, (B & 0 Act I of 1915), is first extended to any
place, the first tax on holdings, latrines or water may be
levied from the beginning of the quarter next to that in
which the assessment of the tax has been completed-in the
area to which the Act is extended."
The High Court, purporting to apply In re The Delhi Laws
Act, 1912(1) held that the impugned sections and the
notifications complained of are intra vires.
We are only concerned with the Patna Village ’area in this
case. The appellant and those he represents all live in
that area and are the ones who impugn the validity of the
taxes levied on them. They were brought under Municipal
control on 18th April, 1951. The Bengal Municipal Act of
1884 was no longer one of the existing laws in the State of
Bihar on that date. It was repealed in full in 1922 and was
replaced by the Bihar, and Orissa Municipal Act of 1922.
The selected sections of the Bengal Act of 1884 which the
Local Government had picked out and applied to Patna Ad-
ministration were also repealed on 25th April, 1931, and in
their place was substituted another set of sections picked
out by the Local Government from the Bihar and Orissa Act of
1922 and modified in places. The facts accordingly narrow
down to this.
In 1928 an executive authority (the Local Government of
Bihar and Orissa), subject to the legislative control of the
Bihar and Orissa Legislature, was empowered by that
Legislature (because of Act I of 1915 amended by Act IV of
1928) to do the following things:-
(1)to cancel or modify any existing Municipal laws inthe
Patna Administration area
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(2)to extend to this area all or any of the sections of the-
Bihar and Orissa Municipal Act of 1922 (I) [1951] S.C.R.
747.
297
subject to such restrictions and modifications as it
considered fit;
(3) to add to the Patna Administration area other areas not
already under municipal control.
This, in short, is the effect of sections 3(1) (f), 5 and
6(b) of the Patna Administration Act of 1915 as amended in
1928. Armed with this authority, the Local Government (and
later the Governor) exercised all three powers.
On 25th April, 1931, the Local Government repealed the
existing law in the Patna Administration area, namely the
sections of the Bengal Act of 1884 which had been applied
there from time to time. In its place, it introduced a new
set of laws culled from the Bihar and Orissa Act of 1922
with such restrictions and modifications as it thought fit.
Then on 18th April, 1951, the Governor added Patna Village
to the Patna Administration area. And finally, on 23rd
April, 195 1, he added a modified, version of section 104 of
the Bihar and Orissa Municipal Act of 1922 to the Municipal
laws in these two combined areas.
The first question is whether the notification of 26th
April, 1931, can be attacked by the petitioner. In our
Opinion, it cannot. As we have already pointed out, this
notification gave a sort of fresh Municipal Code to the
Patna Administration area. But it did not affect the area
with which we are concerned namely, the Patna Village area.
It was limited to Patna Administration. The petitioner
therefore cannot challenge it because it does not affect him
and the question whether it is open to challenge by other
persons does not arise. We are accordingly unable to give
him the declaration which he seeks regarding that
notification.
We turn next to the notification of 23rd April, 1951. This
does affect him because it subjects him to taxation. It was
made under section 3(1) (f), therefore, it will be necessary
to examine (1) whether the notification travels beyond the
impugned portion of the Act and (2) if not, whether section
3(1) (f) is itself ultra vires. But we cannot do this until
we examine the decision of this Court, in the Delhi Laws Act
case(1).
(1) [1951] S.C.R. 747,
38
298
Because of the elaborate care with which every aspect of the
problem was examined in that case, the decision has tended
to become diffuse, but if one concentrates on the matters
actually decided and forgets for a moment the reasons given,
a plain pattern emerges leaving only a narrow margin of
doubt for ,future dispute.
The Court had before it the following problems. In each
case, the Central Legislature had empowered an executive
authority under its legislative control to apply, at its
discretion, laws to an area which was also under the
legislative sway of the Centre. The variations occur in the
type of laws which the executive authority was authorised to
select and in the modifications which it was empowered to
make in them. The variations were as follows:
(1) Where the executive authority was permitted, at its
discretion, to -apply without modification (save incidental
changes such as name and place), the whole of any Central
Act already in existence in any part of India under the
legislative away of the Centre to the new area :
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This was upheld by a majority of six to one.
(2) Where the executive authority was allowed to select and
apply a Provincial Act in similar circumstances:
This was also upheld, but this time by a majority of five to
two.
(3) Where the executive authority was permitted to select
future Central laws and apply them in a similar way:
This was upheld by five to two.
(4) Where the authorisation was to select future Provincial
laws and apply them as above:
This was also upheld by five to two.
(5) Where the authorisation was to repeal laws already in
force in the area and either substitute nothing in their
places or substitute other laws, Central or Provincial, with
or without modification:’
This was held to be ultra vires by a majority of four to
three,
299
(6) Where the authorisation was to apply existing laws,
either Central or Provincial, with alterations and’
modifications ; and
(7) Where the authorisation was to apply future laws under
the same conditions:
The views of the various members of the Bench were not as
clear cut here as in the first five cases, so it will be
necessary to analyse what each Judge said.)
The opinion of Kania C.J. will be found at pages 794797.
Put briefly his view was that only Parliament can effect
modifications in any " essential legislative function" viz.,
"the determination of the legislative policy and its
formulation as a rule of conduct." For this reason he was
prepared to uphold what he called " conditional " or "
subsidiary " or " ancillary " legislation, but not the
application by an executive authority of Provincial Acts to
which the Central Legislature had not applied its mind at
all (page 801); and for the same reason he excluded the
application of all future legislation.
The present Chief Justice (Mahajan J. as he then was) took
an ’even stricter view. He was prepared to authorise
delegation of ancillary or ministerial powers (pages 938 and
946) but except for that he said-
" Parliament has no power to delegate its essential
legislative functions to others, whether State Legislatures
or execut ive authorities, except, of course, functions
which really in their true nature are ministerial."
As against this, three of the Judges were more liberal. Das
J. was of the opinion that so long as Parliament did not
abdicate or efface itself and retained control in the sense
of retaining the right to recall or destroy or set right or
modify anything its delegate did, it could confer on the
delegate all the rights of legislation which it itself
possessed (page 1068). Patanjali Sastri J. (as he then was)
took the same extreme view (pages 857, 858 and 870). Fazl
Ali J. did not go as far though he upheld all the Acts which
were impugned in that case. At page 830 he said that-
300
the Legislature must normally discharge its primary
legislative function itself and not through others," but
that it may
" utilise any outside agency to any extent it finds
necessary for doing things which it is unable to do itself
or finds it inconvenient to do. In other words, it can do
everything which is ancillary to and necessary’ for the full
and effective exercise of its power of legislation."
He dealt with the power to modify at page 846 and said-
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" The power of introducing necessary restrictions and
modifications is incidental to the power to apply or adapt
the law......... The modifications are to be made within the
-framework of the Act and they cannot be such as to affect
its identity or structure or the essential purpose to be
served by it. The power to modify certainly involves a
discretion to make suitable changes, but it would be useless
to give an authority the power to adapt a law without giving
it the power to make suitable changes."
The other two Judges took an intermediate view. Mukherjea
J. said that essential legislative functions cannot be
delegated and at pages 982 to 984 he indicated what he
meant:
,,The essential legislative function consists in the
determination or choosing of the legislative policy and of
formally enacting that policy into a binding rule of
conduct,"
and at page 1000-
" With the merits of the legislative policy, the Court of
law has no concern. It is enough if it is defined with
sufficient precision and definiteness so as to furnish
sufficient guidance to the Executive Officer who has got to
work it out. If there is no vagueness or indefiniteness in
the formulation of the policy, I do not think that a Court
of law has got any say in the matter."
Dealing with the word modification he said at, page 1006-
301
The word I modification.......... does not, ’my opinion,
mean or involve any change of policy but is confined to
alteration of such a character which keeps the policy of the
Act intact and introduces such changes as are appropriate to
local conditions of which the executive Government is made
the Judge......... "
At pages 1008 and 1009 he explained this further and limited
the modifications to " local adjustments or changes of a
minor character."
Bose J. contented him self at page 1121 by saying that the
delegation cannot extend to the " altering in essential
particulars of laws which are already in force in the area
in question." But he added at page 1124-
" My answers are, however, subject to this qualification.
The power to ’restrict and modify’ does not import the power
to make essential changes. It is confined to alterations of
a minor character such as are necessary to make an Act
intended for one area applicable to another and to bring it
into harmony with laws already in being’ in the State, or to
delete portions which are meant solely for another area. To
alter the essential character of an Act or to change it in
material particulars is to legislate, and that, namely the
power to legislate, all authorities are agreed, cannot be
delegated by a Legislature which is not unfettered."
In our opinion, the majority view was that an executive
authority can be authorised to modify either existing or
future laws but not in any essential feature. Exactly what
constitutes an essential feature cannot be enunciated in
general terms, and there was some divergence of view about
this in the former case, but this much is clear from the
opinions set out above: it cannot include a change of
policy.
Now coming back to the notification of 23rd April, 1951.
Its vire8 was challenged on many grounds but it is enough
for the purposes of this case to hold that the action of the
Governor in-subjecting the residents of the Patna Village
area to municipal taxation without observing the formalities
imposed by sections 4, 5 and 6 of the Bihar and Orissa
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Municipal Act of 1922, cuts
302
across one of it essential features touching a matter of
policy and so is bad.
The Act of 1922 applied to the whole of Bihar and Orissa and
one of its essential features is that no municipality
competent to tax shall be thrust upon a locality without
giving its inhabitants a chance of being heard and of being
give n an opportunity to object. Sections 4, 5 and 6 afford
a statutory guarantee to that effect. Therefore, the Local
Government is under a statutory duty imposed by the Act in
mandatory terms to listen to the objections and take them
into consideration before reaching a decision. In our
opinion, this is a matter of policy, a policy imposed by the
Legislature and embodied in sections 4, 5 and 6 of the Act.
We are not able to brush this asideas negligible and it
cannot, in our opinion, be left to an executive authority to
tear up this guarantee in disregard of the Legislature’s
solemnly expressed mandate. To do so would be to change the
policy of the law and that, the majority in the Delhi Laws
Act case(1) say, cannot be done by a delegated authority.
But the notification cannot be ultra vires if it does not
travel beyond the powers conferred by a law which is good.
It will therefore be necessary to examine the vires of
section 3(1)(f) in the light of the Delhi Laws Act
decision.
Now what exactly does section 3(1)(f ) authorise? After its
amendment it does two things: first, it empowers the
delegated authority to pick any section it chooses out of
the Bihar and Orissa Municipal Act of 1922 and extend it to
"Patna"; and second, it empowers’the Local Government (and
later the Governor) to apply it with such "restrictions and
modifications" as it thinks fit.
In the Delhi Laws Act case(1), the following provision was
held to be good by a majority of four to three:
"The Provincial Government may...... extend with such
restrictions and modifications as it thinks fit...... any
enactment which is in force in any part of British India at
the date of such notificatior.".
Mukherjea and Bose JJ., who swung the balance, held that not
only could an entire enactment with
(i) [1951] S.C.R. 747-
303
modification be extended but also a part of one; and indeed
that was the actual decision in Burah’s case(1) on which the
majority founded: (see Mukherjea J. at page 1000 and Bose J.
at pages 1106 and 1121). But Mukherjea and Bose JJ., both
placed a very restricted meaning on the words "restriction"
and "modification" and, as they swung the balance, their
opinions must be accepted as the decision of the Court
because their opinions embody the greatest common measure of
agreement among the seven Judges.
Now the only difference between that case and this is that
whereas in the former case the whole of an enactment, or a
part of it could be extended, here, any section can be
picked out. But to pick out a section is to apply a part of
an Act, and to pick out a part is to effect a modification,
and as the previous decision holds that a part of an Act can
be extended, it follows that a section or sections can be
picked out and applied, as in Burah’s case(1) where just
that was done; also, for the same reason that the whole or a
part of an Act can be modified; it follows that a section
can also be modified. But even as the modification of the
whole cannot be permitted to effect any essential change in
the Act or an alteration in its policy, so also a
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modification of a part cannot be permitted to’ do that
either. If that were not so, the law, as laid down in the
previous decision, could be evaded by picking out parts of
an Act only, with or without modification, in such a way as
to effect an essential change in the Act as a whole. It
follows that when a section of an Act is selected for
application, whether it is modified or not, it must be done
so as not to effect any change of policy, or any essential
change in the Act regarded as a whole. Subject to that
limitation we hold that section 3(1)(f) is intra vires, that
is to say, we hold that any section or sections of the Bihar
and Orissa Municipal Act of 1922 can be picked out and
applied to "Patna" provided that does not effect any
essential change in the Act or alter its policy.
The notification of 23rd April, 1951 does, in our opinion,
effect a radical change in the policy of the Act.
(I) 5 I.A. 178.
304
There fore, it travels beyond the authority which, in our
judgment, section 3(1)(f) confers and consequently it is
ultra vires,
It is not necessary to examine the vire8 of section 5 of the
Act of 1915 which was also impugned because no action taken
under it has hurt the appellant and so he cannot question
its vires.
The result is that the appeal succeeds. We hold-
(1) that section 3(1)(f) is intra vire8 provided always
that the words "restriction" and "modification" are used in
the restricted sense set out above; and
(2) that the notification of 23rd April, 1951, is ultra
vires.
The question about the vires of the notification of 25th
April, 1931, and of section 5 does not arise.
The respondents will pay the appellant’s costs here and in
the High Court.
Appeal allowed.
305