Case: Rajnarain Singh  Vs.  The Chairman, Patna Administration Committee, Patna, And Another

are agreed, cannot be delegated by a Legislature which is not unfettered."11. 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 our above : it cannot include a change of policy.12. Now coming back to the notification of 23rd April, 1951. Its vires 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 Municipal Act of 1922, cuts 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 given 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 an take them into consideration before reaching a decision. In our opinion, this is 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 an it cannot, in our opinion, be left to an executive authority to tear up this guarantee in disregard of the Legislatures 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 ([1951] S.C.R. 747) 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 ([1951] S.C.R. 747), the following provision was held to be good by a majority of four to three :"The Provincial Government may........ extend with such restriction and modifications as it thinks fit.......... any enactment which is in force in any part of British India at the date of such notification."Mukherjea and Bose JJ., who swung the balance, held that not only could an entire enactment with modification be extended but also a part of one; and indeed that was the actual decision in Burahs case (5 I.A. 178) 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.13. 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 Burahs case (5 I.A. 178) 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 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 on 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. Therefore, it travels beyond the authority which, in our judgment, section 3(1)(f) confers and consequently it is ultra vires.14. It is not necessary to examine the vires of section 5 of the Act of 1951 which was also impugned because no action taken under it has hurt the appellant and so he cannot question its vires.15.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 given 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 an take them into consideration before reaching a decision. In our opinion, this is 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 an it cannot, in our opinion, be left to an executive authority to tear up this guarantee in disregard of the Legislatures 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 ([1951] S.C.R. 747) 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 isour 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 ultrathe 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 Burahs case (5 I.A. 178) 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 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 on 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. Therefore, it travels beyond the authority which, in our judgment, section 3(1)(f) confers and consequently it is ultra vires.