Andhra HC (Pre-Telangana)
S.V. Narasimhulu Naidu And Another vs Government Of Andhra Pradesh, Rep. By ... on 30 April, 2013
Bench: N.V. Ramana, Vilas V. Afzulpurkar
THE HONOURABLE ACTING CHIEF JUSTICE N.V. RAMANA AND THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
WRIT PETITION Nos.36625 of 2012
dated:30-04-2013
S.V. Narasimhulu Naidu and another....PETITIONERS
Government of Andhra Pradesh, Rep. by its Principal Secretary, Revenue (Acts
and Rules) Department, Secretariat, Hyderabad...RESPONDENTS
Counsel for the Petitioners: MR.K.SATYANARAYANA MURTHY
Counsel for the Respondents: GP FOR REVENUE
GP FOR ASSIGNMENT
ADVOCATE GENERAL
GP FOR ASSIGNMENT
ADVOCATE GENERAL
<Gist :
>Head Note:
?CITATIONS:
1. AIR 1947 PRIVY COUNCIL 34
2. AIR 1968 SC 360
3. 2001 (1) ALD 555 (DB)
4. 1995 SUPP (2) SCC 295
5. (1996) 3 SCC 709
THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
TUESDAY, THE THIRTEITH DAY OF APRIL
TWO THOUSAND AND THIRTEEN
PRESENT
THE HON'BLE ACTING CHIEF JUSTICE N.V. RAMANA
AND
THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR
WRIT PETITION Nos.36625 and 37292 of 2012
WP.No.36625 of 2012:
BETWEEN
S.V. Narasimhulu Naidu and another.
...PETITIONERS
AND
Government of Andhra Pradesh, Rep. by its Principal Secretary, Revenue (Acts and
Rules) Department, Secretariat, Hyderabad.
...RESPONDENTS
Counsel for the Petitioners: MR. K. SATYANARAYANA MURTHY
Counsel for the Respondents: GP FOR REVENUE
GP FOR ASSIGNMENT
ADVOCATE GENERAL
WP.No.37292 of 2012:
BETWEEN
B. Yogeswara Rao
...PETITIONER
AND
Government of Andhra Pradesh, Rep. by its Principal Secretary, Revenue (Acts and
Rules) Department, Secretariat, Hyderabad.
...RESPONDENTS
Counsel for the Petitioner: MR. T.N.M. RANGA RAO
Counsel for the Respondents: GP FOR REVENUE
GP FOR ASSIGNMENT
ADVOCATE GENERAL
The Court made the following:
COMMON ORDER:(Per Hon'ble Acting Chief Justice Sri N.V. Ramana) The petitioners filed these two writ petitions questioning the amendment made to Rule 5(1) of the A.P. Land Grabbing (Prohibition) Rules 1983 (for short 'the Rules') as being contrary to the scheme of the A.P. Land Grabbing (Prohibition) Act, 1982 (for short 'the Act'), as being discriminative and consequently sought a direction to declare the amendment as ultra vires the parent Act. It would be appropriate to refer to the prayer made by the petitioner in one of the writ petitions, namely W.P No. 36625 of 2012 which reads as under:
"(a) call for the records pertaining to and connected with the amendment issued by the 1st respondent to Rule 15(1) under impugned G.O. Ms. No. 539 Revenue (Acts & Rules) Department dated 25.8.2012 (24 years after the rule came into the force) is contrary to law laid down under Special Enactment made under A.P. Land Grabbing (Prohibition) Act 1982 and defeating the object of the Act in resisting the rule in respect of Government is illegal, arbitrary, discriminatory, totally non-application of mind and violative of Art 14, 21, 31 and 300-A of the Constitution of India and hence the impugned G.O. liable to be set aside, and
(b) consequently direct the Respondents 3 and 4 to implement the orders passed in LGC No.2/2004 dated 18.9.2008 as confirmed by the Division Bench of the Hon'ble Court vide its order dated 25.4.2011 in W.P. No. 25010 of 2008 and 26811 of 2008 and pass such other and further order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."
2. The learned counsel for the petitioners submitted that the petitioners challenge the aforesaid amended Rule, primarily, on the ground that the said amendment is contrary to the scheme of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 and it is discriminative whereby different procedure is prescribed for Government lands and private lands. The retrospective effect given to the amended Rule is also questioned on the ground that it unsettles the existing executions. Petitioners in both the writ petitions have traced history of the litigation in which both the petitioners state that they have become successful and while anxiously awaiting for the fruits of the decree by taking up the execution proceedings before the RDO, the aforesaid amendment is brought into force at the instance of the District Collector, Hyderabad and now the petitioners are exposed to fresh long drawn execution proceedings before the civil Court. The power of the Special Court/Tribunal to execute its own decrees and decisions is now taken away by the aforesaid amendment by asking each decree holder to approach the civil Court for execution whereas the power to execute the order so far as Government land is concerned, the same continues to be retained with the RDO.
3. Learned counsel for the petitioners have elaborated the submissions by placing reliance on a decision of the Privy Council in Province of Bombay v. Municipal Corporation of the City of Bombay1 and the relevant portion of para 11 thereof is extracted hereunder:
"11. It was contended on behalf of the respondents that whenever a statute is enacted "for the public good" the Crown, though not expressly named, must be held to be bound by its provisions and that, as the Act in question was manifestly intended to secure the public welfare, it must bind the Crown. This contention, which did not meet with success in the High Court, was again raised before their Lordships. The proposition which the respondents thus sought to maintain is supported by early authority, and is to be found in Bacon's Abridgement and other text-books but in their Lordships' opinion it cannot now be regarded as sound except in a strictly limited sense. Every statute must be supposed to be "for the public good," at least in intention, and even when, as in the present case, it is apparent that one object of the Legislature is to promote the welfare and convenience of a large body of the King's subjects by giving extensive powers to a local authority, it cannot be said, consistently with the decided cases, that the Crown is necessarily bound by the enactment..."
Reliance is also placed on a decision of the Supreme Court in Union of India (UOI) v. Jubbi2 and relevant para 12 is extracted hereunder:
"12. It is clear that the object of the Act was to abolish big landed estates and alleviate the conditions of occupancy tents by abolishing the proprietary rights of the landowner in them and vesting such rights in the tenants. That being the paramount object of the legislature it is hardly likely that it would make any discrimination between the State and the citizen in the matter of the application of the Act. This is especially so because if such a discrimination were to be brought about through a construction suggested by the State it would result in an anomaly in the sense that whereas occupancy tenants of lands owned by the citizens would have the benefit of such a beneficent legislation occupancy tenants of lands owned and held by the State would not get such benefit. An intention to bring about such a discrimination against the latter class of tenants cannot be attributed to the legislature whose avowed object was to do away in the interest of social and economic justice landlordism in the State. In view of the decision in Supdt. & Legal Remembrancer v. Corp. of Calcutta (1967 Cri LJ 950), the State cannot also claim exemption on the ground only that the Act does not expressly or by necessary implication make it binding on the State."
Reliance is also placed on a decision of this Court in State of A.P. and others v. Special Tribunal (Land Grabbing) Dist. Judge3, wherein the Court has taken the view that the definition of person in Section 2(g) of the Act is an inclusive definition and it includes Government also.
The other decisions cited by the learned counsel for the petitioners in the brief note filed, however, are not relevant for considering the issue involved.
4. Learned Special Government Pleader appearing on behalf of the Advocate General has, on the contrary, tried to sustain the aforesaid amendment by pointing out that numerous difficulties are expressed by the RDO in execution of such decrees and apart from the regular work, which the RDO has to attend, the additional work relating to execution of decrees relating to private properties makes it impossible for the RDO to execute such orders. Learned Special Government Pleader, therefore, contended that the failure of the machinery by the process at the disposal of the RDO compelled the District Collector, Hyderabad to recommend the amendment to Rule 15(1) of the Rules and the Government, after taking into consideration the difficulty expressed and the nature of work involved, decided to amend Rule 15(1) to the extent of private properties.
5. Learned Special Government Pleader placed reliance upon a decision of the Supreme Court in Dahiben v. Vasanji Kevalbhai4 to support his contention that retrospective amendment by making express provision or by necessary implication is permissible. Learned counsel also relied upon the decision of the Supreme Court in State of A.P. v. Mc Dowell & Co.5 and placed reliance on the ratio in paras 43 and 44 to explain the meaning of the word 'arbitrary' used in para 43. Hence, both the paras are extracted hereunder:
"43. ... Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the Legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by Clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the Clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety [See Council of civil Services Union v. Minister for the Civil Services (1985) A.C. 374 which decision has been accepted by this Court as well]. The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue. [See the opinions of Lords Lowry and Ackner in R. v. Secretary of State for the Home Department Ex-parte Blind and Ors. (1991) A.C. 696 . It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. Now, coming to the decision in Ananthi Ammal, we are of the opinion that it does not lay down a different proposition. It was an appeal from the decision of the Madras High Court striking down the Tamil Nadu Acquisition of land for Harijan Welfare Schemes Act, 1978 as violative of Articles 14 19 and 300A of the Constitution. On a review of the provisions of the Act, this Court found that it provided a procedure which was substantially unfair to the owners of the land as compared to the procedure prescribed by the Land Acquisition Act, insofar as Section 11 of the Act provided for payment of compensation in installments if it exceeded Rupees two thousand. After noticing the several features of the Act including the one mentioned above, this Court observed:
"7. When a statute is impugned under Article 14 what the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject which derives its authority from another source can be referred to, if its provisions have been held to be reasonable or have stood the test of time, only for the purpose of indicating what may be said to be reasonable in the context. We proceed to examine the provisions of the said Act upon this basis."
44. It is this paragraph which is strongly relied upon by Sri Nariman. We are, however, of the opinion that the observations in the said paragraph must be understood in the totality of the decision. The use of the word "arbitrary" in Para-7 was used in the sense of being discriminatory, as the reading of the very paragraph in its entirety discloses. The provisions of the Tamil Nadu Act were contrasted with the provisions of the Land Acquisition Act and ultimately it was found that Section 11 insofar as it provided for payment of compensation in installments was invalid. The ground of invalidation is clearly one of discrimination. It must be remembered that an Act which is discriminatory is liable to be labelled as arbitrary.
It is in this sense that the expression "arbitrary" was used in para 7."
6. Learned Special Government Pleader also relied upon a decision of the Supreme Court in State of T.N. v. P. Krishnamurthy6 by placing strong reliance on paras 15 and 16, which are extracted below for convenience:
"Whether the rule is valid in entirety?
15. There is a presumption in favour of constitutionality or validity of a sub- ordinate Legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a sub-ordinate legislation can be challenged under any of the following grounds:-
(a) Lack of legislative competence to make the sub-ordinate legislation.
(b) Violation of Fundamental Rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where court might well say that Legislature never intended to give authority to make such Rules).
16. The court considering the validity of a sub-ordinate Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non- conformity of the Rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the Parent Act, the court should proceed with caution before declaring invalidity."
Lastly, the decision of the Supreme Court in Rajendra Kumar v. Kalyan7 is relied upon and particularly, para 22 thereof is extracted hereunder:
"22. The law thus seems to be well settled that no person has, in fact, a vested right in procedural aspect - one has only a right of prosecution or defence in the manner as prescribed by the law for the time being and in the event of any change of procedure by an Act of Parliament one cannot possibly have any right to proceed with the pending proceedings excepting as altered by the new legislation and as such we need not dilate on the issue any further."
7. We have given our most anxious and thoughtful consideration to the rival contentions of both the parties. Now the issue that falls for our consideration is "Whether the amendment made to Rule 15(1) of the Rules is discriminative, contrary to the scheme of the parent Act and liable to be declared as ultra vires?"
8. In order to hold whether a particular rule is contrary to the scheme of the parent Act or violative of Article 14 of the Constitution of India, the Courts have to look into the object of the Act and the rule in question. Before we appreciate the amended rule under challenge, it would be appropriate to notice the object, purpose and scheme of the Act.
(a) "An Act to prohibit the activity of Land Grabbing in the State of Andhra Pradesh and to provide for matters connected therewith.
Whereas there are organised attempts on the part of certain lawless persons operating individually and in groups, to grab, either by force or by deceit or otherwise, lands (whether belonging to the Government, a local authority, a religious or charitable institution or endowment, including a wakf, or any other private persons) who are known as "land grabbers."
And whereas such land grabbers are forming bogus co-operative housing societies or setting up fictitious claims and indulging in large scale and unprecedented and fraudulent sales of lands belonging to the Government, local authority, religious or charitable institutions or endowments including a wakf or private persons, through unscrupulous real estate dealers or otherwise in favour of certain sections of the people resulting in large accumulation of unaccounted wealth and quick money to land grabbers;
And Whereas, having regard to the resources and influence of the persons by whom, the large scale on which and the manner in which, the unlawful activity of land grabbing was, has been or is being organised and carried on in violation of law by them, as land grabbers in the State of Andhra Pradesh and particularly in its urban areas it is, necessary to arrest and curb immediately such unlawful activity of land grabbing;
And whereas public order is adversely affected by such unlawful activity of land grabbers;"
9. The objects and reasons for the said amendment to the Act as well as notes on clauses in support of the aforesaid amended provision would throw light on the intention of the Legislature, and therefore, we deem it appropriate to look at certain provisions which are relevant for our purpose.
"Clause 7:- The very nature of the composition of the Special Court should not give any scope to any party to circumvent its decisions and orders and defeat, the just claims of the persons in whose favour the orders or decisions are given. To ensure this, it is felt that civil and criminal powers should be conferred on the Special Court.
This clause substitutes new Sections 9, 10 and 10-A in place of the present Sections 9 and 10. It is intended to reduce the rigour of burden of proof under the existing Section 10 and shifts the burden of proofs on the alleged land grabber only where there is prima facie proof that the land belongs to Government."
The old and new Section 9 may also be noticed here:
Section 9 prior to amendment:
"9. Special Court to have the powers of the Civil Court and the Court of Sessions:-
(1) Competent authority to implement orders of the Special Court: - The competent authority shall give effect to any order of the Special Court made under this Act.
(2) Where according to the order of the Special Court under sub-section (1) of Section 8 the ownership of the land grabbed belongs to the Government, local authority, religious or charitable institution or endowment including a wakf, or any other private persons, the competent authority may, restore possession of such land to such owner.
(3) Where the competent authority is unable to restore possession of the land, for any reason to the person or authority directed by the Special Court, it may either keep the land taken possession of under its control and management in public interest, or otherwise provided for the proper management, till it is duly restored to the rightful person or authority"
Section 9 after amendment:
"9. Special Court to have the powers of the Civil Court and the Court of Sessions:
Save as expressly provided in this Act, the provisions of the Code of Civil Procedure, 1908, (Central Act 5 of 1908) the Andhra Pradesh Civil Courts Act, 1972 (Act 19 of 1972) and the Code of Criminal Procedure, 1973, (central Act 2 of 1974) in so far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings before the Special Court and for the purposes of the provisions of the said enactments, Special Court shall be deemed to be a Civil Court, or as the case may be, a Court of Session and shall have all the powers of a Civil Court and a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor."
In the definitions, clause (cc) was inserted, which is extracted below:
(cc) 'land belonging to a private person' means any land belonging to,-
(i) an evacuee;
(ii) a military personnel; or
(iii) any other private individual;
The value or the extent of which or the nature of the evil involved shall be of substantial nature or in the interest of justice required.
10. Section 17-B of the Act provides that the schedule given therein shall constitute the guidelines for interpretation and implementation of the Act and for trial and enforcement. The Special Court has to follow its own procedure. Section 15 of the Act gives overriding effect to the provisions of the Act over other laws. Section 16(1) of the Act empowers the Government to make rules for carrying out all or any of the purposes of the Act.
11. The Government derives power under Section 16 to make rules, and accordingly, Government has made amendment to Rule 15(1) of the Act. It is appropriate to extract Rule 15(1) as it originally stood as also the amended Rule 15(1), and they read as follows:
Rule 15(1) as it originally stood:
"15(1). The Court/Tribunal shall communicate its final decision or order to the affected parties and also to the Revenue Divisional Officer to give effect to the decisions of the Court."
Amended Rule 15(1):
"15(1). The Court/Tribunal shall communicate its final decision or order in respect of the Government land to the affected parties and also to the Revenue Divisional Officer to give effect to its decisions. In respect of other lands the final decision/order shall be communicated to the affected parties who shall take action to give effect to the decision in accordance with the provisions of the Code of Civil Procedure, 1908"
The aforesaid amendment is made by the State by issuance of G.O.Ms.No.539 Revenue (Acts and Rules) Department dated 25.08.2012.
12. The purpose of amended Rule, as is evident from the above extract, is to discontinue the existing scheme as to execution of the orders of the Court/Tribunal, through the Revenue Divisional Officer, insofar as private lands are concerned. Thus, the execution of any decision of Court/Tribunal so far as Government lands are concerned continues with the RDO but has only been amended so far as private lands, that all decisions of the Court/Tribunal are now made executable through the civil Court under the provisions of the Code of Civil Procedure, 1908.
13. After going through different provisions of the Act, it becomes crystal clear that the object of the Act is to protect the Government as well as private lands from the clutches of encroachers and to arrest and curb the illegal activity of land grabbing. The whole purpose seems to be that the matters are settled in a very expeditious manner because on the one hand the Special Court decides the controversy and on the other hand, puts the person in possession of the property. In the entire Act, the Government and the private person were never placed on different platforms and the object of the Act is to free both the private land and the Government lands from the clutches of the encroachers and unauthorized occupants. The provisions contained in the Act are required to be interpreted by applying the rule of purposive construction. The intention of the Legislature is very clear from the Act to grant protection to both the Government and the private individuals without any discrimination. It was not within the contemplation of the Legislature to extend the benefit only to the Government and relegate the private individuals to civil Court.
14. The Act was amended by AP Act 16 of 1987. The objects as set out therein disclose that it was felt necessary to extend the operation of the Act to all lands situated within the urban agglomeration as defined in the Urban Land (Ceiling and Regulation) Act, 1976 and also to such other lands having regard to the urbanisable nature of the land. Section 9 of the parent Act was also amended and the Special Court was empowered to record conviction and award sentences and execute its order and decision as that of a civil Court or as the case may be, a Court of Sessions. Similarly, while empowering the Special Court to follow its own procedure in conformity with the principles of natural justice and fair play, it was envisaged that the Special Tribunal would be empowered to mould the relief. In order to ensure quick recovery, the provisions of the Revenue Recovery Act, is made applicable. The decree shall be executed as a decree of civil Court. It further provided that 'advancement of the cause of justice is the foundation of actions for the Special Court. Keeping this in view, it is provided that the Special Court may award compensation in respect of the wrongful possession of the land held to have grabbed and also profits accrued from such land and the liability to make payment will be on the land grabber. The Special Court also has the power to direct re-delivery of the grabbed land to the rightful owner. In order to ensure swift implementation of the orders and decisions of the Special Court, it is provided that amount of compensation and profits and the costs of re-delivery shall be recovered as arrears of land revenue, in case, the Government is held to be the owner and in other cases, they will be executed as a decree of civil Court. The Special Court itself is empowered to execute the decree passed and the orders made by it.
15. The rule making authority by this amendment to Rule 15(1) has made a discrimination between the private individuals and the Government, by which the private individual is relegated to a civil Court for execution of his decree, is contrary to the scheme of the Act, for the reason that the purpose of enactment is to ensure quick relief to the aggrieved person. It is settled law that if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to say that the statute prevails over subordinate legislation and the rules, if not in conformity with the statute, in order to give effect to the statutory provision, the rule or byelaw has to be ignored. The rules, therefore, cannot be so framed, which do not carry out the purpose of the Act and cannot be in conflict with the parent Act.
16. The preamble of G.O. Ms. No. 539, dated 25.08.2012, under which the amended Rule was made, itself states that the District Collector, Hyderabad, had proposed amended Rule, as he has narrated certain difficulties faced by the RDO in handing over physical possession of the land to successful parties in land grabbing cases.
17. We have specifically asked the learned Special Government Pleader as to whether the Government had received any such requests from other Collectors in the State and the Special Government Pleader fairly stated that only the District Collector, Hyderabad, has made such request and his request having been considered, lead to the amendment to the Rule. We are of the view that mere difficulty, as expressed by the Collector, Hyderabad, is no ground to amend the Rule itself. We also feel that the machinery of the RDO is successfully working for over 30 years with respect to lands belonging to the Government and that of the private parties. Further, the same machinery of the RDO is available and enforceable even today so far as Government land is concerned, as obviously the said remedy is expeditious.
18. Therefore, from the foregoing discussions, it is clear that the amended Rule 15(1) of the Rule is discriminatory between the Government and the private parties as decree holders. We fail to see any rationale or any reasonableness in the classification nor any object for advancement of the purpose of the Act and instead, we feel that the impugned amendment retards the same, and therefore we are of the considered opinion that the amendment is manifestly unreasonable and arbitrary. It clearly defeats the very purpose and object of the Act and is ultra vires the rule making power of the State.
19. The law is well settled that a piece of subordinate legislation can be questioned on the same ground as plenary legislation and in addition, it can also be questioned on the ground that it does not conform to the statute under which it is made. In this context. It would be appropriate to refer paragraphs 17 and 20 to the decision of the Apex Court in P. Krishna Murthy's case (6 supra), which quoted passages from Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India and St. Johns Teachers Training Institute v. Regional Director, NCTE, and they read thus:
"17. In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India [(1985) 1 SCC 641], this Court referred to several grounds on which a subordinate legislation can be challenged as follows:
"75.A price of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary."
"20. In St. Johns Teacher Training Institute v. Regional Director, NCTE [(2003) 3 SCC 321], this Court explained the scope and purpose of delegated legislation thus:
"10.A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilization of experience and consultation with interests affected by the practical operation of statutes."
20. Thus it is evident that the rule making authority has to act within the framework of the law and within the limits of the policy framework laid down therein. Any amendment made must serve the objects for which the Act was enacted.
21. Since the impugned Rule 15(1) discriminates between the government and the private parties as decree holders, as held above, we have no hesitation in declaring that the amendment made to Rule 15(1) of the Rules is arbitrary, discriminatory and contrary to the scheme and ultra vires the Act, and accordingly, the amended Rule 15(1) is quashed.
22. The writ petitions are accordingly allowed. The miscellaneous applications, if any, shall stand disposed of as infrucutous. There shall be no order as to costs.
____________________ N.V. RAMANA, ACJ ____________________________ VILAS V. AFZULPURKAR, J DATED:30-04-2013