Professional Documents
Culture Documents
Before The Hon'Ble Supreme Court of India
Before The Hon'Ble Supreme Court of India
Under
▬ IN THE MATTER OF ▬
v/s.
INDEX OF AUTHORITIES
CASE LAWS
Memorial On Behalf of AppellantPage 2
1. Bharat Bank Ltd., Delhi v. Union of India,………………………….AIR 1950 SC 188.
2. Pritam Singh v. the State,……………………………………………AIR 1950 SC 169.
3. Tarapada De and Ors. v. the State of West Bengal,…………………AIR 1951 SC 174.
4. State of J. & K. v. Ganga Singh Thakur,…………………………….AIR 1960 SC 356.
5. Sri Anadi Mukta Sadguru S.M.V.S.J.M.S. trust v. V.R. Rudani,……AIR 1989 SC 1607.
6. The state of Orissa v. Madan Gopal Rungta,…………………………AIR 1952 SC 12.
7. Sharif Ahmad v. H.T. Meerut,……………………………………….AIR 1978 SC 209.
8. Prem Chand Garg v. Excise Commissioner, U.P.,…………………AIR 1963 SC 996.
9. R.C. Cooper v. Union of India,……………………………………..AIR 1970 SC 564.
10. Ishwar Singh v. State of Rajasthan,…………………………….…..AIR 2005 SC 773.
11. V.T. Khanzode v. R.B.I.,………………………………………….…...(1982) 2 SCC 7.
12. Mahesh Chandra v. U.P. financial corporation,……………….…..AIR 1993 SC 935.
13. Sale Tax officer v. Abraham,………………………………….…..AIR 1967 SC 1823.
14. Jyoti Pershad v. Administrator, Union territory of Delhi,…….….AIR 1961 SC 1605.
15. Gwalior Rayon Co. v. Assistant Commissioner of Sale Tax, ….....AIR 1974 SC 1660.
16. Registrar, Co-operative Societies v. K. Kunjabmu,……………..…AIR 1980 SC 351.
17. Jalan Trading Co.(P.) Ltd. v. Mill Mazdoor Sabha,…………..……..AIR 1967 SC 691.
18. Agriculture Market Committee v. Shalimar Chamical,………..…..(1997) 5 SCC 516.
19. Hamdard Dawakhana v. Union of India,……………………..…...AIR 1960 SC 554.
20. Hansraj L. Chulani v. Bar Council of Maharashtra & Goa, …....AIR 1996 SC 1708.
21. St. John Teachers Training Institute v. N. C. T. E. ……………..…. (2003) 3 SCC 321.
22. M/s Devi Das v. State of Punjab, ……………………………..….AIR 1967 SC 1898.
23. Harak Chand v. Union of India,……………………………….…AIR 1970 SC 1456.
24. R. D. Shetty v. International Airport Authority of India………......AIR 1979 SC 1628.
BOOKS
1. Jain, M.P., “Indian Constitutional Law”, Sixth Edn., Lexis Nexis Butterworths Wadhwa,
Nagpur.
2. Basu, Durga Das, “Commentary on the Constitution of India”, Eighth Edition, Lexis
Nexis Butterworths Wadhwa, Nagpur 2009.
WEBSITES
1. www.manupatra.com
2. www.lexis-nexisindia.com
3. www.indiankanoon.com
4. www.westlawindia.com
ABBREVIATIONS
1. & - And
2. AIR - All India Reporter
3. Anr - Another
4. Cl - Clause
5. Edn. - Edition
6. Ors. - Others
7. P. - Page
8. Pp. - Pages
9. v. - Versus
STATEMENT OF JURISDICTION
The Counsel for the Appellant has approached the Jurisdiction to this Hon’ble Supreme Court of
India under Article 1321 of the Indian Constitution, 1950 to hear the present matter and adjudge
accordingly.
1 Article 132 of the Constitution of India, 1950 :- Appellate jurisdiction of Supreme Court in appeals from High
Courts in certain cases ( 1 ) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a
High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under
Article 134A that the case involves a substantial question of law as t the interpretation of this Constitution
(2) Omitted
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any
such question as aforesaid has been wrongly decided Explanation For the purposes of this article, the expression
final order includes an order declaring an issue which, if decided in favour of the appellant, would be sufficient for
the final disposal of the case
STATEMENT OF ISSUES
ARGUMENTS ADVANCED
It is humbly contended before this Hon’ble Supreme Court that the appeal is
maintainable under Article 132 of the Indian Constitution, 1950 because it is
appellant jurisdiction of Supreme Court in appeals from High Court.
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final
order of a High Court in the territory of India, whether in a civil, criminal or
other proceeding, if the High Court certifies under Article 134A that the case
involves a substantial question of law as the interpretation of this Constitution
(2) Omitted
(3) Where such a certificate is given, any party in the case may appeal to the
Supreme Court on the ground that any such question as aforesaid has been
wrongly decided Explanation For the purposes of this article, the expression
final order includes an order declaring an issue which, if decided in favour of
the appellant, would be sufficient for the final disposal of the case.
Similarly in the case of Pritam Singh v. the State3 wherein the Supreme Court held
that Article 132 applies both to civil and criminal cases and under it an appeal
shall lie to the supreme court from judgment, decree or final order of high court,
whether in civil, criminal or other proceeding, if the high court certifies that the
case involves a substantial question of law as to the interpretation of the
constitution.
In Tarapada De and Ors. v. the State of West Bengal 4 what happened in this case
that Calcutta high court rejected the habeas corpus petition of the appellant. Then
appellant approached the Supreme Court under Article 132 of the Constitution of
India which deals with appellant jurisdiction of the Supreme Court in certain
cases involving a substantial question of law. then court found that this appeal is
maintainable under Article 132 of the Indian Constitution and Supreme Court
entertain the appeal.
4 Tarapada De and Ors. v. the State of West Bengal, AIR 1951 SC 174.
It is humbly contended before this Hon’ble Court that the appellant has a locus
standi in the present case because it Air-Jharkhand Public Corporation has used an
absolute excessive delegation of legislative power which directly effect/infringe
the right of Mr. Ahmad Ali who is member of the public corporation.
The Supreme Court in Sri Anadi Mukta Sadguru S.M.V.S.J.M.S. trust v. V.R.
Rudani7 wherein it was held that the form of the body concerned is not very much
relevant what is relevant is the nature of the duty imposed on the body. If positive
obligation exists mandamus cannot be denied but such duty must have public
character.
In The state of Orissa v. Madan Gopal Rungta 8, the issuing of writs or the
directions by the high court is founded only on its decision that a right of the
aggrieved party under part III of the constitution has been infringed. It can also
issue writs or give similar directions for any other purpose. The conducting words
6 Sir Chunilal Mehta & Sons Ltd. v. the Century Spinning & Manufacturing Co. Ltd., AIR 1962 SC 1314.
7 Sri Anadi Mukta Sadguru S.M.V.S.J.M.S. trust v. V.R. Rudani, AIR 1989 SC 1607.
It is humbly contended before this Hon’ble Supreme Court that there is an excessive
delegation of legislative power to Air-Jharkhand under the Air-Jharkhand rules, 2004
which was framed by public corporation. But same power has not been provided by the
parliament to Air-Jharkhand under Parent Act. If Air-Jharkhand does any work by using
absolute excessive delegation power under Air-Jharkhand rules, 2004. If it is
contravention to the parent Act and constitution of India then it should be invalid.
In the case of Ishwar Singh v. State of Rajasthan13 wherein the word “Delegation”
implies that powers are committed to another person or body which are as a rule, always
subject to resumption by the power delegating. The word ‘delegate’ means little more
than an agent. An agent exercises no power of his own but only the power of his
principal. In general, a delegating body will retain not only power to revoke the great but
also power to act concurrently on matters within the area of delegated authority except
insofar as it may already have become bound by an act of it’s delegated14
The term delegated legislation is used in two senses: (i) the exercises by a subordinate
agency (a delegate of the legislation) of legislative power delegated by the legislation. (ii)
the subsidiary rules themselves which emanate from the subordinate agency as a result of
The test for valid delegations of legislative power are (i) legislature cannot efface itself
(ii) legislature cannot delegate the plenary or essential legislative function. (iii) even if
there is delegation parliamentary control over delegated legislation should be a living
continuity as a constitutional necessity.16
In the case of State of Tamil Nadu v. K. Shyam Sunder17 wherein the court held that
legislature has a wide power of delegation. But this however, is subject to one limitation,
namely, it cannot delegate uncontrolled power, the legislature while delegating power is
required to lay down the criteria or standard as to enable the delegatee to act within the
framework of the statute. Delegation is valid only when it is confined to legislative policy
and guidelines18
When legislative power is delegated the power must be exercised within the scope of the
authority conferred by the enabling act. When it exceeds the authority it is ultra virus the
enabling status and is invalid. The efficiency of judicial review in this area depends on
the terms in which legislative power is delegated by the statute. When the delegation
clause is couched is very wide terms there cannot be any effective judicial scrutiny.
Generally, the government is given power to make such rules “as appear to it to be
necessary or expedient” or “for carrying out the purposes of the act.”
Here it becomes a hazardous task to determine whether subordinate made in pursuance of
such statutory provisions really falls within the scope of authority. The only test that can
be applied by the courts is to see whether the rules are reasonably related to the
15 Chairman, Indore Vikas Pradhikaran v. Pure Industrial coke & chamicals Ltd., (2007) 8 SCC 705.
There is no doubt that a statutory corporation can do only those acts as are authorized by
the statute creating it, and that powers of such corporation do not extend beyond it. A
statutory corporation must act within the framework of its constitution. Its express
provisions and necessary implications must at all events be observed scrupulously if it
fails to act in conformity with law, the action is ultra vires and invalid. But it is equally
well settled. The doctrine of ultra vires in relation to the powers of a statutory corporation
must be understood reasonably. “Whatever may fairly be regarded as incidental to, or
consequent upon, those things which the legislature has authorized ought not (under
expressly prohibited) to be held by judicial construction, to be ultra vires.”19
The statutory corporation being an instrumentality of the state must exercise its power in
just, fair and reasonable manner. Its approach must be beneficial to the general public. It
must act bona fide. Wide power conferred corporations are subject to inherent limitations
that they should be exercised honestly and in good faith.20
In Sale Tax officer v. Abraham21 wherein in spite of the wide terms, in which legislative
power was delegated the rules made by the government was struck down. The
government was authorized to make rules “for carrying out the purposes of the act.” The
rules made in pursuance of this provision prescribed the last date for falling declaration
forms by dealers from the statute. It was found that only the power to made rules
prescribing that particulars to be included in the forms was delegated. The above rule
prescribing a time limit for filing the form was therefore stuck down as ultra virus the
statute.
According to the doctrine of excessive delegation, if the legislature excessively delegated
its legislative function to any other authority, such delegation will be held
unconstitutional.
The majority view expressed in Gwalior Rayon Co. v. Assistant Commissioner of Sale
Tax23 was reiterated by a five judge bench of the Supreme Court in K.S.E. Board v.
Indian Aluminium24 the court has reiterated the principle of excessive delegation in
Registrar, Co-operative Societies v. K. Kunjabmu25 explaining the principle of
excessive delegation the court has pointed out that the power to legislate carries with
it the power to delegate but excessive delegation may amount to abdication and
delegation unlimited may invite despotism uninhibited thus the following theory has
been evolved. The legislature cannot delegate its essential legislate it must, by laying
down policy and principle and delegate it may, to fill in detail & carry out policy.
23 Gwalior Rayon Co. v. Assistant Commissioner of Sale Tax, AIR 1974 SC 1660.
In Jalan Trading Co.(P.) Ltd. v. Mill Mazdoor Sabha 27 wherein the section 37 of the
payment of Bonus Act, 1965 authorised the Central Government to provide by order
for removal of doubts or difficulties in giving effect to the provisions of the act the
court held that section 37 ultra virus on the ground of excessive delegation and
observed that the act authorized the Government to determine for itself what the
purposes of the act are which in substance would amount to exercise of legislative
power that cannot be delegated. Legislative must retain in its own hands the essential
legislative functions and what can be delegated is the task of subordinate legislation
necessary for implementing the purpose and objects of the act.28
In Hamdard Dawakhana v. Union of India 29 it was probably the first case in which
central act was held ultra vires on the ground of excessive delegation. The Drugs and
Magic Remedies (objectionable Advertisements) Act, 1954 was enacted by
parliament to control advertisement of certain drugs. Section 3 laid down a list of
diseases for which advertisement was prohibited and authorized the central
government to include any other disease in the list. The Supreme Court held section 3
invalid as so criteria, standards or principles had been laid down therein and the
power delegated was unguided and uncontrolled.
In Hansraj L. Chulani v. Bar Council of Maharashtra & Goa30 the state bar council
framed a rule as to “right to practise” legal profession and disqualified persons if they
30 Hansraj L. Chulani v. Bar Council of Maharashtra & Goa, AIR 1996 SC 1708.
In St. John Teachers Training Institute v. National Council for Teacher Education31
wherein the Supreme Court emphasized on the need and necessity of delegated
legislation. It was observed that the legislature cannot possibly foresee every
administrative difficulty that may arise in operating a statute delegated legislation fill
those gap and details rules framed by the executive in exercise of delegated power,
however cannot supplant the law enacted by the legislature but can supplement it.
Delegated legislation made in exercise of power under the parent act is supporting
legislation made in exercise of power under parent act is supporting legislation and
has the force and effect, if validity made, as the act itself.
In M/s Devi Das v. State of Punjab 32 wherein the court held that section 5 of the
Punjab general sales tax Act, 1948, was invalidated since an uncontrolled power was
conferred on the provincial government to levy every year on the taxable turnover of
a dealer a tax at such rates as the said government might direct. Under this section
legislature practically effaced itself in the matter of fixation of rates and it did not
give any guidance either under that section under any provisions of the Act hence the
act is invalid.
In Harak Chand v. Union of India33 wherein a clause in Gold Control Act was
declared invalid on the ground of excessive delegation. Act empowered administrator
to authorize such person as he thinks fit to also exercise all or any powers exercised
by him under the act and different persons may be authorized to perform different
powers reviewing the various provisions of the Act, sections 114(1), 8, 11, 21, 31(3),
31 St. John Teachers Training Institute v. National Council for Teacher Education, (2003) 3 SCC 321.
According to section 30 of the Airport authority of India Act 1994 which defines
delegation of power that the authority may by general or special order in writing,
delegate to chairperson or any other member or any officer of the authority subject to
such conditions & limitations but not excessive power.
In Rajasthan SEB v. Mohan Lal35 the expression “state” has been liberally construed
by the supreme court and all authorities created by the a statute on which powers
were conferred to carry out governmental or quisi-governmental function were held
to be state.
34 St. John Teachers Training Institute v. National Council for Teacher Education, (2003) 3 SCC 321.
36 Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628.
In Panama Refining Co. v. Rayans40 wherein the Supreme Court of the United States
had held that the Congress can delegate legislative power to the executive subject to
the conditions that it lays down the policies and established standards while leaving to
the administrative authorities the making of the subordinate rules within the
prescribed.
PRAYER
Wherefore, in the light of facts of the case, issues raised, arguments advanced and
authorities cited, this Court may be pleased to adjudge and declare that
And pass any other order in favour of the Appellant that it may deem fit in the light of
equity, justice and good conscience.
Place: Ranchi
Date: 11thApril, 2016.