Civil Appeal No 1401 of 1991
From the Judgment and Order dated 26101987 of the Karnataka High Court in WA No 607 of 1982
SR Bhat and Prabir Chaudhury NP for the Appellants
AB Rohtagi M Veerappa RL Bhardwaj and Vishnu Mathur for the Respondents
The Judgment of the Court was delivered by FATHIMA BEEVI J
The Karnataka Slum Areas Improvement and Clearance Act 1973 which received the assent of the President on 1st October 1974 is an Act to provide for improvement and clearance of slums in the State of Karnataka
Section 3 of the Act empowers the Government to declare certain areas as slum areas
If the Government is satisfied that any area which is likely to be a source of danger to health safety or convenience of the public of that area or of its neighbourhood by reason of the area being low lying unsanitary squalid over crowded or otherwise the Government may by notification declare the areas as slum area 
Under Section 11 when the Government is satisfied on a report from the competent authority that the most satisfactory method of dealing with the conditions in the area is the clearance of such area and demolition of the buildings in the area it may by notification declare the area to be the slum clearance area 
The Notification No HMA 59 MCS 76 dated 1711977 was issued by the Karnataka Government declaring an extent of one acre in Timber Yard slum by the side of Main Road Cottonpet Bangalore as slum area 
After considering the objections another notification dated 30121977 was issued under Section I1 of the Act declaring 978 the entire land as slum clearance area 
However on January 20 1981 the Government issued notification under Section 31 cancelling the earlier notification dated 30121977 and re declaring an extent of 14 12 guntas only as slum area 
The notification dated 2011981 had been challenged by the appellants mainly on the grounds that it is in violation of the principle of natural justice and Article 14 of the Constitution has been violated
It was contended that slum dwellers who are affected by the Government s action have not been given an opportunity of being heard and they have been denied equality by denying basic human needs since a major part of the slum area has been excluded from the operation of the scheme
The single Judge of the High Court took the view that the appellants had no locus standi to challenge the impugned notification and even on merits there was no case
The Division Bench of the High Court agreed on the question of locus standi and without going into the merits confirmed the judgment
The appellants have approached this Court under Article 136 of the Constitution of India
We have granted special leave to appeal
The learned counsel for the appellants relying on the decisions of this Court in section P Gupta vs Union of India 1982 2 SCR 365 and Olga Tellis vs Bombay Municipal Corporation  1985 Suppl
2 SCR 51 vehemently contended that the High Court has erred in holding that the petitioners have no locus standi
He also submitted that in view of the purpose of the legislation and the scheme contemplated thereunder once action has been taken declaring a larger area as slum clearance area  any change thereafter which would directly affect the slum dwellers could not be taken without giving the affected persons an opportunity of being heard and there is therefore the clear violation of the principle of natural justice
It was also urged that there is no specific provision under the statute enabling the Government to rescind the notification and assuming that it exists there was no proper exercise of the power
Mr Rohtagi counsel appearing on behalf of the 3rd respondent submitted that the first notification dated 1711977 was challenged by the owners of the land in a writ petition as they were not heard as required and the fresh notification have been issued on the assurance given before the Court that they would be heard
It was pointed out that there was no need to hear the owners or occupiers at the stage of issuing the notification under Section 31 of the Act and Section 11 979 does not confer any Statutory right to the occupiers
Relying on Section 21 of the General Clauses Act it was maintained that the power to withdraw or rescind the notification was inherent and the authority who is empowered to issue the notification is entilitled to rescind the same
It was also pointed out that there had been dispute over the title of the land in question that civil litigation was in progress and that the earlier declaration was made without proper basis
Action has been taken by the owners against the tenants for eviction and orders have been obtained in their favour and the petitioners have no case and are not entitled to any relief
The counsel for the State adopted these arguments
The first question that falls for consideration is whether the appellants can challenge the action of the Government
This question need not detain us when the law is now settled that in such situation even a public interest litigation would lie
The first appellant Association represents the interests of the slum dwellers and the second appellant himself is one of the residents in the area
The action of the Government on the averments made affects a class of persons and if that group of persons is represented by the Association they have a right to be heard in the matter
Where a member of the public acting bona fide moves the Court for enforcement of a fundamental right on behalf of a person or class of persons who on account of poverty or disability or socially or economically disadvantaged position cannot approach the Court for relief such member of the public may move the Court even by just writing a letter as held by this Court in Bandhua Mukti Morcha vs Union of India  Ors  We are therefore of the view that the High Court was wrong in concluding that appellants were incompetent to invoke the jurisdiction of the Court
We shall now consider the argument that the State Government had no power to rescind the notification issued under Sections 3 and 11 in the absence of any specific provision in the Act
Section 21 of the General Clauses Act is in pari materia with Section 10 of the Karnataka General Clauses Act
This Section reads 21
POWER TO ISSUE TO INCLUDE POWER TO ADD TO AMEND VARY OR RESCIND NOTIFICATIONSORDERS RULES OR BYE LAWS
Where by any Central Act or Regulation a power to issue notifications orders rules or bye laws is conferred then that power includes a power exercisable in the like manner and subject to the like sanction and conditions if any to add 980 to amend vary or rescind any notifications orders rule or bye laws so issued
 Under Section 21 of the General Clauses Act the power to issue a notification includes the power to rescind it
It is always open to the Government to rescind the notification
We shall refer to the decisions of this Court in State of Kerala vs K G Madhavan Pillai   State of M P vs V P Sharma   and Lt Governor of H P vs Sri Avinash Sharma1970 2 SCC 149
In these cases arising under the Land Acquisition Act the issue before the Court was whether the Government could exercise powers only under Section 48 of the Land Acquisition Act to withdraw a notification for acquisition made under Section 41 of the Act
When the Government issued successive notifications under Section 6 covering different portions of the land notified for acquisition under Section 41 the validity of the last of the notification was challenged on the ground that a notification under Section 41 could be followed only by one notification under Section 6
In repelling the contention this Court incidentally observed at page 693 thus That the only way in which the notification under Section 41 can come to an end is by withdrawal under Section 481 is not correct because under Section 21 of the General Clauses Act the power to issue a notification includes the power to rescind it and therefore it is always open to the Government to rescind a notification under Section 4 or under Section 6 and a withdrawal under Section 481 is not the only way in which a notification under Section 4 or Section 6 can be brought to an end In Lt Governor of HP vs Sri Avinash Sharma supra the Court observed at page 151 thus Power to cancel a notification for compulsory acquisition is it is true not affected by Section 48 of the Act by a notification under Section 21 of the General Clauses Act the Government may cancel or rescind the notification issued under Sections 4 and 6 of the Land Acquisition Act
But the power under Section 21 of the General Clauses Act cannot be exercised after the land statutorily vests in the State Government
 In Lachmi Narain vs Union of India   this 981 Court observed at page 808 thus Section 21 as pointed out by this Court in Gopichand vs Delhi Admn 1959 Suppl
2 SCR 87 embodies only a rule of constructions and the nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification
 In State of Bihar vs DN Ganguly  Ors   it was held that it is well settled that the rule of construction embodied in S21 of the General Clauses Act can apply to the provisions of a statute only where the subject matter context or effect of such provisions are in no way inconsistent with such application
In that case the question was where an industrial dispute has been referred to a tribunal for adjudication by the appropriate government under Section 101d of the Industrial Disputes Act can the said government supersede the said reference pending adjudication before the tribunal constituted for that purpose The Court held the notification to be invalid and ultra vires pointing our that is would be necessary to examine carefully the scheme of the ACt its object and all its relevant and material provisions before deciding the application of the rule of construction enunciate by Section 21
After examining the relevant provisions of the Act the Court said that once an order in writing is made by the appropriate government under Section 101d the proceedings before the tribunal are deemed to have commenced and if the appropriate government has by implication the power to cancel its order passed under Section 101 the proceedings before the tribunal would be rendered wholly ineffective by the exercise of such power and Section 21 cannot be invoked
In Kamla Prasad Khetan vs Union of India   this Court considred the scope of Section 21 of the General Clause Act
At page 1068 the Court observed thus The power to issue an order under any Central Act includes a power to amend the order but this power is subject to a very important qualification and the qualification is contained in the words exercisable in the like manner and subject to the like sanction and conditions if any      
The true scope and effect of the expression subject to the like conditions if any  occurring in Section 21 of the General Clauses Act has been explained
 982 Relying on these decisions the learned counsel for the appellants contended that even if source of power could be traced under Section 21 the exercised of that power could only be in the same manner as provided and when a notification under Section 31 had been issued declaring certain areas as slum area  the power to rescind the notification and limit the extent could be exercised only after hearing the affected parties for the Government to satisfy itself that what has already been declared does not come within the scope of the proposed scheme
The object of the statute and the relief that was sought to be conferred are matters to be taken into consideration in such action
It has been brought to our notice that about 100 persons had been living in the area under conditions which require the implementation of the scheme under the Act for their redressal and once steps have been taken in that direction any variation that could affect the occupants in the areas was required to be made only after giving them an opportunity of being heard
It is thus maintained that there had been no proper exercise of the power assuming that the power is vested on the Government and there is clear violation of the principle of natural justice
It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers
If there is power to decide and determine to the prejudice of a person duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made
What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case the frame work of the law under which the enquiry is held and the body of persons appointed for the purpose
It is only where there is nothing in the statue to actually prohibit the giving of an opportunity to be heard but on the other hand the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding that the audi alteram partem rule could be imported
The Mysore Slum Areas Improvement and Clearnance ACt 1958 this Court held in Government of Mysore  Ors
vs JV Bhat etc
  thus There can be no two opinions about the need to hear the affected persons before declaring an area to be a slum area under section 3 or an area as a clearance area under section 9 or before taking action under section 10
All these difficulties will be removed if the affected persons are given 983 an opportunity to be heard in respect of the action proposed
 The Preamble to the present Act itself states that the Act is to provide for the improvement and clearance of slums in the State
Under the existing law it has not been possible effectively to check the increase and to eliminate congestion and to provide for basic needs such as streets water supply and drainage and to clear the slums which are unfit for human habitation
To obviate this difficulty it is considered expedient to provide for the removal of unhygenic and insanitary conditions prevailing in the slums for better accommodation and improved living conditions for slum dwellers for the promotion of public health generally
These are the objectives sought to be achieved by the enactment which has been made in implementation of the Directive Principles of State Policy to improve public health
It is therefore obvious that when a declaration has been made in implementation of the Directive Principles of State Policy to improve public health
It is therefore obvious that when a declaration is made under section 3 and a further declaration is made under section 11 the inhabitants of the areas are affected and any further action in relation to the area which areas are affected and any further action in relation to the area which is declared to the slum clearance area  without affording such persons an opportunity of being heard would prejudicially affect their rights
The right to be heard in the matter has been acquired by the earlier action of the authority in considering the area for the purpose of the scheme
This is clear from the proviso to sub sec
1 of Section 11 of scheme
This is clear from the proviso to sub sec
1 of Section 11 of the Act
When any alternation is sought to be made in the original scheme it becomes incumbent upon the authorities to give an opportunity to the persons who had been affected by the earlier order and required to adopt a certain course of action
In this view of the matter it is to be held that when a notification is made rescinding the earlier notifications without hearing the affected parties it is clear violation of the principle of natural justice
Such action is exercise of the implied power to rescind cannot then be said to have been exercised implied power to rescind cannot then be said to have been exercised implied power to rescind cannot then be said to have been exercised subject to be quashed on this ground
It shall be open to the Government to proceed after affording the slum dwellers an opportunity of being heard on the basis of the earlier notifications that were in force
In the result the appeal is allowed and the order of the High Court is set aside
The impugned notification is quashed subject to the observations made
We make no order as to costs
Appeal allowed


Summary:
Section 7 of the  provided that The Provincial Government may by notification in the official gazette extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part there of any enactment which is in force in any part of British India at the date of such notification
Section 2 of the Ajmer Merwara Extension of Laws Act 1947 provided that The Central Government may by notification in the official gazette extend to the Province of Ajmer Merwara with such restrictions and modifications as it thinks fit any enact ment which is in force in any other Province at the date of such notification
Section 2 of the Part C States Laws Act 1950 provided that The Central Government may by notification in the official gazette extend to any Part C State   or to any part of such State with such restrictions and modifications as it thinks fit any enact ment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law  which is for the time being applicable to that Part C State
As a result of a decision of the Federal Court doubts were entertained with regard to the validity of laws delegating legislative powers to the executive Government and the President of India made a reference to the Supreme Court under article 143 1 of the Constitution for considering the question whether the above mentioned sec tions or any provisions thereof were to any extent and if so to what extent 748 and in what particulars ultra vires the legislatures that respectively passed these laws and for reporting to him the opinion of the Court thereon Held 1per FAzL ALl PATANJALI SASTRI MUKHERJEA DAS and Bose JJ KANIA CJ and MAHAJAN J dissenting
Section 7 of the  and section 2 of the Ajmer Merwara Extension of Laws Act 1947 are wholly intra vires
KANIA CJ Section 7 of the  and section 2 of the Ajmer Merwara Extension of Laws Act 1947 are ultra vires to the extent power is given to the Government to extend Acts other than Acts of the Central Legislature to the Provinces of Delhi and Ajmer Merwara respectively inasmuch as to that extent the Central Legisla ture has abdicated its functions and delegated them to the executive government
MAHAJAN J
The above said sections are ultra vires in the following particulars i inasmuch as they permit the executive to apply to Delhi and Ajmer Merwara laws enacted by legislatures not competent to make laws for those territories and which these legislatures may make within their own legislative field and ii inasmuch as they clothe the executive with co extensive legislative authority in the matter of modification of laws made by legislative bodies in India
2 Per FAZL ALI PATANJALI SASTRI MUKHERJEA DAS and BOSE JJ
The first portion of section 2 of the Part C States Laws Act 950 which empowers the Central Government to extend to any Part C State or to any part of such State with such modifications and restrictions as it thinks fit any enactment which is in force in a Part A State is intra vires
Per KANIA CJ MAHAJAN MUKHERJEA and Boss JJ
The latter portion of the said section which empowers the Cen tral Government to make provision in any enactment extended to a Part C State for repeal or amendment of any law other than a Central Act which is for the time being applicable to that Part C State is ultra vires
Per FAzL ALI PATAN JALI SASTRI and DAS JJ
The latter portion of section 2 of the Part C States Laws Act 1950 is also intra vires
KANIA CJ
To the extent that section 2 of the Part C States Laws Act 1950 empowers the Central Government to extend laws passed by any Legislature of a Part A Slate to a Part C State it is ultra vires
MAHAJAN J Section 2 of the Part C States Laws Act 1950 is ultra vires in so far as it empowers the Central Government i to extend to a Part C State laws passed by a legislature which is not competent to make laws for that Part C State and ii to make modifications of laws made by the legislatures of India and iii to repeal or amend laws already applicable to that Part C State
749 KANIA CJ i The essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct and these essentials are the characteristics of a legislature by itself
Those essentials arc preserved when the legislature specifies the basic conclusions of fact upon the ascertainment of which from relevant data by a designated administrative agency it ordains that its statutory command is to be effective
The legislature having thus made its laws every detail for working it out and for carrying the enactment into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer
While this is also sometimes described as delegation of legislative powers in essence it is different from delega tion of legislative power as this does not involve the delegation of the power to determine the legislative policy and formulation of the same as a rule of conduct
While the so called delegation which empowers the making of rules and regulations has been recognised as ancillary to legislative power the Indian Legislature had no power prior to 1935 to delegate legislative power in its true sense
Apart from the sovereign character of the British Parliament whose powers are absolute and unlimited a general power in the legislature to delegate legislative powers is not recognised in any state
The powers of the Indian Legislature under the Constitution Acts of 1935 and 1950 are not different in this respect
iiAn abdication of its powers by a legis lature need not necessarily amount to complete effacement of itself
It may be partial
If full powers to do everything that the legislature can do are conferred on a subordinate authority although the legislature retains the power to control the action of the subordinate authority by recalling such power or repealing the Acts passed by the subordinate authority there is an abdication or effacement of the legislature conferring such power
FAzL ALl J i The legislature must formally dis charge its primary legislative function itself and not through others
ii Once it has been established that it has sovereign powers within a certain sphere it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law and it mayutilise any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it incon venient to iii It cannot however abdicate its legislative functions and therefore while entrusting power to an out side agency it must see that such agency acts as a subordi nate authority and does not become a parallel legislature
iv As the courts of India are not committed to the doc trine of separation of powers and the judicial interpreta tion it has received in America there are only two main checks in this country on the power of the legislature to delegate these being its good sense and the principle that it should not cross the line beyond which delegation amounts to 750 abdication and self effacement  v The power to intro duce necessary restrictions and modifications is incidental to the power to adapt or apply the law
The modifications contemplated are such as can be made within the framework of the Act and not such as to affect its identity or structure or the essential purpose to be served by it
PATANJALI SASTRI J i It is now established beyond doubt that the Indian Legislature when acting within the limits circumscribing its legislative power has and was intended to have plenary powers of legislation as large and of the same nature as those of the British Parliament itself and no constitutional limitation on the delegation of legislative power to a subordinate unit is to be found in the Indian Councils Act 1861 Or the Government of India Act 1935 or the Constitution of 1950
It is therefore as competent for the Indian Legislature to make a law delegating legislative power both quantitatively and qualitatively
as it is for the British Parliament to do so provided it acts within the circumscribed limits
ii Delegation of legislative au thority is different from the creation of a new legislative power
III the former the delegating body does not efface itself but retains its legislative power intact and merely elects to exercise such power through an agency or instru mentality of its choice
In the latter there is no delega tion of power to subordinate units but a grant Of power to an independent and co ordinate body to make laws operative of their own force
For the first no express provision authorising delegation is required
In the absence of a constitutional inhibition delegation of legislative power however extensive could be made so long as the delegating body retains its own legislative power intact
For the second however a positive enabling provision in the con stitutional document is required
iii The maxim delegates non potest delegare is not part of the constitutional law of India and has no more force than a political precept to be acted upon by legislatures in the discharge of their func tion of making laws and the courts cannot strike down an Act of parliament as unconstitutional merely because Parlia ment decides in a particular instance to entrust its legis lative power to another in whom it has confidence or in other words to exercise such power through its appointed instrumentality however repugnant such entrustment may be to the democratic process
What may be regarded as politi cally undesirable is constitutionally competent
iv Howev er wide a meaning may be attributed to the expression restrictions and modifications it would not affect the constitutionality of the delegating statute MAHAJAN J i It is a settled maxim of constitu tional law that a legislative body cannot delegate its power
Not only the nature of legislative power but the very existence of representative government depends on the doc trine that legislative powers cannot be transferred
The legislature cannot substitute the 751 judgment wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust
The view that unless expressly prohib ited a legislature has a general power to delegate its legislative functions to a subordinate authority is not supported by authority or principle
The correct view is that unless the power to delegate is expressly given by the constitution a legislature cannot delegate its essential legislative functions
As the Indian Constitution does not give such power to the legislature it has no power to delegate essential legislative functions to any other body
ii Abdication by a legislative body need not necessarily amount to complete effacement
There is an abdication when in respect of a subject in the Legislative List that body says in effect that it will not legislate but would leave it to another to legislate on it
MUKHERJEA J
As regards constitutionality of the delegation legislative powers the Indian Legislature cannot be in the same position as the omnipotent British Parliament and how far delegation is permissible has to be ascertained in India as a matter of construction from the express provisions of the Indian Constitution
It cannot be said that an unlimit ed right of delegation is inherent in the legislative power itself
This is not warranted by the provisions of the constitution and the legitimacy of delegation depends en tirely upon its being used as an ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and complete ly
The legislature must retain in its own hands the essen tial
legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law and what can be delegeted is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it
Provided the legislative policy is enunciated with sufficient clearness or a standard is laid down the courts should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case
Das J i The principle of non delegation of legisla tive powers founded either on the doctrine of separation of powers or the theory of agency has no application to the British Parliament or the legislature constituted by an Act of the British Parliamentii in the ever present complex ity of conditions with which governments have to deal thepower of delegation is necessary for and ancillary to the exercise of
legislative power and is a component part of it iii the operation of the act performed under dele gated power is directly and immediately under and by virtue of the law by which the power was delegated and its efficacy is referable to that antecedent law iv if what the legis lature does is legislation within the general scope of the affirmative words which give the power and if it violates no express 752 Condition or restriction by which that power is limited then it is not for the court to inquire further or enlarge constructively those conditions or restrictions v while the legislature is acting within its prescribed sphere there is except as herein after stated no degree of or limit to its power of delegation of its legislative power it being for the legislature to determine how far it should seek the aid of subordinate agencies and how long it shall continue them and it is not for the court to prescribe any limit to the legislature s power of delegation vi the power of delegation is however subject to the qualification that the legislature may not abdicate or efface itself that is it may not without preserving its own capacity intact create and endow with its own capacity a new legislative power not created or authorised by the Act to which it owes its own existence
vii The impugned laws may also be supported as instances of conditional legislation within the meaning of the decision in Queen vs Burah
Bose J
The Indian Parliament can legislate along the lines of Queen vs Burgh that is to say it can leave to another person or body the introduction or application of laws which are or may be in existence at that time in any part of India which is subject to the legislative control of Parliament whether those laws are enacted by Parliament or by a State Legislature set up by the constitution
But delegation of this kind cannot proceed beyond that it cannot extend to the repealing or altering in essential particulars laws which are already in force in the area in question