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Author(s): K. C. Joshi
Source: Journal of the Indian Law Institute, Vol. 18, No. 3 (July-September 1976), pp. 509-
514
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43950444
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Journal of the Indian Law Institute
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QUESTION OF LEGISLATIVE POLICY IN DELEGATED
LEGISLATION- RECENT CASES
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Sio JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 18:3
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1976] QUESTION OF LEGISLATIVE POLICY IN DELEGATED LEGISLATION 511
Khanna, J., thought that the legislative power should not only be
exercised in the name of the people, but also by their representatives.
Therefore, 4 'it is not permissible," he stated "to substitute in the matter
of legislative policy the views of individual officers or other authorities how-
ever competent they may be for the popular will as expressed by the repre-
sentatives of the people."16
We are not certain whether the preamble of the Act gives any
guidance for fixing the rate of excise duty. But that does not
16. Id. at 1667. The majority view gets support from M.P. Jain and S N Jain See
XA.S.LL. Administrative Law, 505 at 509-510(1974) and X A.S.I.L . Law of Sales' Tax
473 at 494-495 respectively.
17. AJ.R. 1975 S.C. 1007.
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512 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 1$ : 3
However, in this case, the second form of the legislative control, viz , the
repealing power of the legislature, which was noted in the views expressed by
Mathew, J., - concurred by Ray, C.J., - in the Gwalior Rayon Mills case,20 was
referred to. ßut instead of the Gwalior Rayon Mills case, the court relied on
the Privy Council decision in Cobb and Co. v. Kropp}1 In this case the Queens-
land legislature had conferred power on the Commissioner of Transport to
impose and levy licence and permit fees. This power was upheld on the grou-
nd that the legislature retained perfect control over him. Thus, the established
rule that the legislature can delegate its legislative power provided it lays
down the policy or standard was disturbed.
Before N.K. Paj aiah's rule22 ignoring the legislative policy or standard
requirement could gain ground, the rule was again examined by the Supreme
Court in Kerala Slate Electricity Board v. Indian Aluminium Co.23 In this case
the validity of the Kerala State Electricity Supply (Kerala State Electricity Board
and Licenses Areas) Surcharge Order, 1968 was questioned. The order was
made under section 3 of the Kerala Essential Articles Control (Temporary
Powers) Act, 1961. Section 2 ( a ) of the Act defines 'essential article' as
meaning any article (not being an essential commodity under the Essetial
Commodities Act, 1955) which may be declared by the government by a
notified order to be an essential article. Section 3 empowers the government,
if it is of the opinion, that it is necessary or expedient to do so for maintaining
or increasing the supplies of essential articles or for securing their equitable
distribution and availability at fair prices, to make notified orders. The gov-
ernment declared electricity as an essential article in 1965 and the board
was obliged to levy surcharge on supplies of electricity made to bulk consu-
mers notwithstanding any contract with the consumers fixing the supply
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1976] QUESTION OF LEGISLATIVE POLICY IN DELEGATED LEGISLATION 513
25. It was observed by Alagiriswami, Bhagwati, Goswami and Sarkaria, JJ., (Gupta, y '
J., dissenting) that : y '
The various types of powers
rated in it. Only the article
exercised is left to be determ
to time.. ..It is the executive
what circumstances an artic
1048].
26. Supra note 11.
27. Supra note 15.
28. Supra note 21.
29. Supra note 23 at 1049-50,
30. Supra note 17<
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514 JOURNAL OF THE INDIAN LAW INSTÌTU1É [Vol. 18 : 3
31. Ibid.
32. Supra note 23.
33. Supra note 17.
34. The Gwalior Rayon Mills and the Kerala State Electricity Board cases.
35. In support of this view, see M.r. Jain, Administrative Law a a.ò.i.l. :>uy-3iu
(1974).
36. Supra note 23 at 1046-1047.
37. The insufficiency of legislative control was pointed out to the court in N.K.
Papiah's case ( suprc note 17 at 1011) but the court simply deplored it without suggesting
any wayout (id. at 1012).
# LL.M., Ph.D., Lecturer, Faculty of Law, Kurukshetra University, Kurukshetra*
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