A PROJECT REPORT

On

“JUDICIAL CONTROL OVER SUB-DELEGATED LEGISLATION”

(ADMINISTRATIVE LAW)

Submitted to: Submitted by:

Miss.Vini Kewalia Harsh Khandelwal

(Faculty, School of Law) (B.A.Ll.B.Semester VII)
Manipal University, Jaipur. Reg. No: 141401018

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 CERTIFICATE

Miss.Vini Kewalia Date : 16.09.2017

(Faculty, School of Law)
Manipal University, Jaipur

This is to certify that Harsh Khandelwal is a student of seventh Semester, School of Law,
Manipal University, Jaipur. He has written the project titled “Judicial control over Sub-
Delegated Legislation” under my supervision and guidance. It is further certified that the
candidate has made an appreciable attempt on subject mentioned above.

Miss. Vini Kewalia

Supervisor

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 ACKNOWLEDGEMENT

I have written this project “Judicial control over Sub-Delegated Legislation” under the
supervision of Miss. Vini Kewalia, Faculty, School of Law, Manipal University, Jaipur.

I found no words to express my sense of gratitude for Miss. Vini Kewalia for providing
the necessary guidance and constant encouragement at every step of my endeavour. The pain
taken by her for scrutiny of the rough draft as well as her valuable suggestions to plug the
loopholes therein have not only helped me immensely in making this work see the light of the
day, but above all has helped in developing an analytical approach to this work. I am
extremely grateful to my respected teachers of Manipal University, Jaipur (MUJ) for their co-
operation and guidance and their valuable time. I am highly indebted to the office and library
staff of the college for the support in cooperation extended by them from time to time.

Harsh Khandelwal

B.A.Ll.B. (Hons)
Semester VII

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 TABLE OF CONTENTS

INTRODUCTION .................................................................................................................................. 5
AUTHORITY BASED OR SUB-DELEGATION BASED CLASSIFICATION .................................. 5
JUDICIAL CONTROL OVER SUB- DELEGATED LEGISLATION ................................................. 6
1. The enabling Act being ultra vires .......................................................................................... 6
2. Delegate Legislation/Subordinate Legislation being Violative of the Constitution ..................... 8
3. Subordinate Legislation/Delegated Legislation being ultra vires of the delegated Act .................. 9
i. Excess of the Power Conferred (In excess of delegated authority) ................................... 9
ii. In conflict with the delegating statutes or enabling Acts ................................................. 11
iii. Conflicting with the Prescribed Procedure of the enacting Act.................................. 12
iv. Mala fide .......................................................................................................................... 13
v. Conflict with the terms of some other Statute or General Law ...................................... 14
vi. Encroachment upon the rights....................................................................................... 15
vii. Waiver of the rule ........................................................................................................... 15
viii. Vagueness......................................................................................................................... 15
DOCTRINE OF ULTRA VIRES AS JUDICIAL CONTROL OVER DELEGATED LEGISLATION
.............................................................................................................................................................. 15
PROCEDURAL ULTRA VIRES ......................................................................................................... 17
SUBSTANTIVE ULTRA VIRES ........................................................................................................ 18
When the doctrine of ultra vires is ineffective ? ............................................................................... 20
BIBLIOGRAPHY ................................................................................................................................. 22

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 INTRODUCTION

Another Classification of the delegated legislation may be based on discretion vested in the
rule-making authority. On the basis of 'discretion' delegated legislation may be further
classified as:

i) Subordinate legislation
ii) Conditional or Contingent legislation. Contingent or Conditional legislation may be
defined as a statute that provides control but specifies that they are to come into
effect only when provided in the statute itself.

In subordinate legislation the process consists of the discretionary elaboration of rules and
regulations. The difference between the two, is only for discretion. The contingent or
conditional legislation is fact finding while the subordinate legislation is discretionary.

AUTHORITY BASED OR SUB-DELEGATION BASED CLASSIFICATION

Another classification of delegated legislation is based on the position of the authority

making the rules. Sometimes this rule making authority delegates to itself or to some other
subordinate authority a further power to issue rules; such exercise of rule making power is
known as sub-delegated legislation. Rule making authority cannot sub-delegate its power
unless the power of delegation is contained in the enacting Act. Such authorisation may be
either express or by necessary implication.

The Maxim "delegates non protest delegare" indicate that sub-delegation of power is
normally not allowable though the legislature can always provide it. Courts have always
taken the position that sub-delegation is invalid unless authorized by the Parent Act.
Authorization of sub-delegation must be express, it cannot be inferred.

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 JUDICIAL CONTROL OVER SUB- DELEGATED LEGISLATION

Judicial Control In the Control Mechanism of delegated legislation, judicial control

occupies the prime place. Judicial review of legislation has always been an essential feature
of the Indian Constitutional Law. The delegated legislation does not go beyond the reach of
the judicial review of the Supreme Court and the High Courts. Judiciary exercises effective
control over delegated legislation in India. The validity of delegated legislation can be
examined an several grounds. This judicial review of administrative rule making cannot be
foreclosed in any manner by the enabling Act. In State of Kerala vs. KMC Abdulla &
Co.,1the Supreme Court held that the validity of the rules can still be challenged even in the
face of such a phrase as "shall not be called in question in any Court" in the enabling Act.

In India, so far as the jurisdiction of the Court to examine subordinate legislation is

concerned, the invalidity of delegated legislation may arise on account of any one of the
following reasons:

i) The enabling Act being ultra vires to the Constitution;

ii) Enabling Act is constitutional, but the delegated legislation is ultra vires the
Constitution;

iii) Delegated legislation is ultra vires the enabling Act.

1. The enabling Act being ultra vires

If the enabling Act is ultra vires the Constitution, the rules made thereunder will also be
void. The Parent Act may be unconstitutional on the ground of excessive delegation or
violation of fundamental rights etc., Where the law is unconstitutional, on either ground it is
devoid of any effect and is unenforceable. It is now settled that there is a limit beyond with
delegation may not go. The limit to that essential powers of delegation cannot be delegated
which consist in the determination of choice of the legislation policy and formally enacting
that policy into a binding rule of conduct. The legislative accordingly may not delegate its
function of laying down legislative policy to an outside authority in respect of a measure
and its formulation as a rule of conduct. A law may therefore, be challenged on the ground
that in making delegation of power it has transgressed the permissible limits. Exercise of
delegated law making power is invalid because the enabling Act was ultra vires for it had

1
AIR 1965 SC 1585

6
 exceeded the constitutional limits, for example permitting executive to repeal a law existing
in the area.

Sometimes, certain provisions in the Act may be unconstitutional on the ground of their
being case of excessive delegation. For instance, in Hamdard Davakhana vs. Union of
India2, Section 3(d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act
was declared ultra vires. The whole Act was not struck down, because the other provisions
were found constitutional and to be good law. Similarly in M/s. Devidas Gopal Krishna vs.
State of Punjab3, Section 5 of the Punjab General Sales Tax Act, 1948 as it originally stood
was held void for suffering from unconstitutional delegation. As a matter of fact the
Legislature affected itself in delegating the powers of levying a tax on taxable turnover to
the provincial Government at its own income.

Another type of limitation is called as express limitation. No legislature, for instance, has
the power to transgress the distribution of powers embodied in the Constitution. The
legislative powers of the Union are divided between the Parliament, and State Legislature,
in Article 246. The ambit and limits of the respective powers are defined in the
Constitution. Union Parliament can make laws for whole India or any part thereof in respect
of the matters in the Union as well as concurrent list. Residuary powers belong to the
Union. Accordingly, an Act of Parliament which encroaches upon a subject in the State list
is invalid. Article 245 of the Constitution empowers a State Legislature to make laws for
the whole part of the State. The impugned rule in giving extra-territorial operation to its
provisions transgressed the limits placed on its powers.

The legislature has no legislative competence to violate or put reasonable restriction on the
fundamental rights guaranteed under Part III of the Constitution. If the Parent Act is
violative of fundamental rights, the Act as well as all the delegated legislations made under
it will be treated as unconstitutional and void.

In Chintaman Rao vs. State of MP, [AIR 1951 SC 118], the Supreme Court held that C.P.
Regulation of Manufacture of Bidies Act, 1948 to be ultra vires Art. 19(1)(g) (i.e. freedom
of trade). The Act in question had given wide powers to the Collector to fix the agricultural
season and to prohibit the manufacture of bidies in that season in the notified areas. The

2
AIR 1960 SC 554
3
AIR 1967 SC 1895
7
 purpose of this provision was to induce the bids workers to engage in agricultural work
during the agricultural season and thus to improve food production.

In exercise of that power the collector passed an order totally prohibiting the manufacture
of bidies during the agricultural season. The statutory provision which empowered the
Collector to prohibit bidi manufacturing was struck down by the Supreme Court as it was
violative of Art.19(1)(g). Consequently the Collector's order was also held unconstitutional.

If the Parent Act violates the implied limits of the Constitution then it will be held ultra
vires the Constitution. For the same reason delegated legislation made under such Act will
also be held to be void. The implied limits of the Constitution are:

i) laying of the detailed policy of the Act in the Parent Act itself;

ii) providing sufficient guidelines in the Parent Act for exercise of delegated legislation
by the executive.

2. Delegate Legislation/Subordinate Legislation being Violative of the Constitution

Sometimes the Parent Act holds good, and is within the limits of the Constitution.
However, the delegated legislation made under the Parent Act may be ultra vires the
Constitution.

In Dwaraka Prasad vs. State of U.P.4, Clause 3(2)(b) of the U.P. Coal Control Order [issued
by the government under Section 3 of the Essential Supplies (Temporary Powers) Act,
1946] was declared ultra vires the Constitution as it was violative of Art.19(1)(g) though
the Parent Act was intra vires the Constitution. Clause 3(2)(b) laid down that the State Coal
Controller can exempt any person from the licence requirement for Coal business if he
thinks fit. The Supreme Court held that Clause 3(2)(b) is invalid as it gives arbitrary and
unguided powers to the executive without any guidelines in the matter of exempting from
licence, which is violative of Article 19(1)(g).

In Narendra Kumar vs. Union of India5, the Supreme Court specifically considered the
question whether delegated legislation made under a valid Act could be challenged on the
ground that delegated legislation is unconstitutional. In that case the validity of the Non-
ferrous Metal Control Order, 1958 issued by the government under Section 3 of the

4
AIR 1954 SC 224
5
AIR 1960 SC 430
8
 Essential Commodities Act, 1955 was challenged as unconstitutional. The petitioners did
not challenge the validity of the Parent Act. It was contended by the Union of India that
when the Parent Act is intra vires the Constitution, the delegated legislation made
thereunder cannot be challenged as unconstitutional. Rejecting this argument, the Supreme
Court held that though the Parent Act is Constitutional, still delegated legislation made
thereunder can be challenged as unconstitutional.

Article 31(B) of the Constitution protects the laws which are place in the 9th Schedule of
the Constitution not being questioned that such laws are inconsistant or ultra vires the
Constitution. In Prag Ice and Oil Mills vs. Union of India, [AIR 1978 SC 1297], the
Supreme Court held that this protection/ saves only the laws placed in the 9th Schedule and
not the rules or orders or regulations made thereunder. So delegated legislation can still be
challenged as ultra vires the Constitution even though the Parent Act is protected by Article
31(B) of the Constitution.

3. Subordinate Legislation/Delegated Legislation being ultra vires of the delegated Act

The validity of the delegated legislation can be questioned on the ground that it is ultra
vires the Parent Act. But the question is when a delegated legislation can be said to be ultra
vires the Parent Act. It is difficult to give an exhaustive list of cases where delegated
legislation can be held to be ultra vires the Parent Act. In the following cases delegated
legislation can be said to be ultra vires the Parent Act.

i. Excess of the Power Conferred (In excess of delegated authority)

The delegated power is limited by the terms of delegation. If the rules are not within the
powers entrusted by the legislature, they are liable to be challenged as ultra vires. However,
the effective application of the rule that the delegated powers must not go beyond the terms
of the enabling authority is conditioned by the delegatory Act defining the precise limits of
the law making power. If the power is delegated in very wise terms there would be little
scope left to apply the rule of ultra vires. It is required that the delegated authority leaps
within the powers delegated or follows the procedure prescribed in the Parent Act.

In India, in few cases, delegation of law making power is struck down by the Courts on the
ground of excessive delegation. The efficiency of judicial control on this ground depends
upon the clarity of the terms of limit put by the delegating clause in the Parent Act. If the
delegating clause is too wide then it would be difficult to challenge it on this ground.

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 This is a limit beyond which delegation may not go. The limit is that essential legislative
powers of legislation cannot be delegated, but, the Parent Act should deal with them. If the
Legislature delegates essential legislative function it is in excess of what it should do. The
excessive delegation consists in delegating the power to determine or choose the legislative
policy and of formally enacting the policy into a binding rule of conduct.

In Registrar of Co-operative Societies vs. K Kunjabanu6, Supreme Court stated that. "The
power to legislate carries with in the power to delegate" but "excessive delegation may
amount to abdication" and "delegation unlimited may invite despotism uninhibited".
Therefore, the principle is that "The Legislature cannot delegate its essential legislative
function. Legislature must be laying down policy and principle and delegate it may to fill in
detail and carry out policy."

In Hamdard Dawakhana vs. Union of India7, Section 3(d) of Drugs and Magic Remedies
(Objectionable Advertisements) Act, 1954. The Statement in Section 3(d) "any other
disease or condition which may be specified in the rules under this Act was held by the
Court to have delegated uncanalised powers in the hands of the executive and therefore
constituted excessive delegation. Here Parliament has established no criteria, on standards
and has not prescribed any principle on which a particular disease or condition, is to be
specified in the Schedule. The power of specifying diseases and conditions as specified in
Section 3(d) must, therefore, hold to be going beyond permissible limits and hence ultra
vires. This is the first case in which the court struck down the provisions on the basis of
excessive delegation of legislative powers.

In Edwards Mills Co., vs. State of Ajmer8, Section 27 of the Minimum Wages Act was
questioned on the ground of excessive delegation. It was contended that this provision has
given excessive power to the executive which is not fit in view of the present scheme of the
things upholding the provision in question, the Supreme Court pointed out that the
legislative policy "is apparent on the face of the present enactments what it aims at is the
statutory fixation of minimum wages with a view to obviate the change of exploitation of
labour" and the Legislature intended "to apply the Act not to all industries but to those
industries only where by reason of unorganised labour or want of proper arrangements for

6
AIR 1980 SC 350
7
AIR 1960 SC 550
8
1955 SCJ 99

10
 effective regulation of wages or for other causes the wages of the labourers in a particular
industry were very low."

ii. In conflict with the delegating statutes or enabling Acts

If any part of the delegated legislation is directly or indirectly in conflict with the provisions
of the Parent Act, then it can be challenged on the ground that it is ultra vires the Parent
Act.

In Ram Prasad vs. State of U.P9., U.P. Panchayat Raj Rule 87 framed under UP Panchayat
Raj Act, 1947 was held to be ultra vires the Parent Act by the Allahabad High Court.
SeCtion 49 of the UP Panchayat Raj Act, 1947 provided that every case triable by
Panchayat adalat must be tried by a bench constituted in a manner laid down in the Act.
Rule 87 framed under the Act provided that three members would constitute the quorum.
This number was less than what was provided in the Act. The Court held that this is a clear
case of conflict with the Parent Act and declared it invalid.

In State of Karnataka vs. Pt. Ganesh Kamath10, the Supreme Court struckdown Rule 5(2) as
being inconsistent with the enabling Act. Rule 5(2) had provided that even though a person
has passed the test for driving heavy motor vehicle he cannot obtain a licence unless he has
already possessed a licence for and has two years experience for driving medium motor
vehicle, which licence he, cannot obtain unless he previously passed the test in driving a
medium motor vehicle. The Rule was found to be indirect conflict with Section 7(7)(a) of
the enabling Motor Vehicle Act, 1939 which had provided that a person who passes the test
in driving a heavy motor vehicle is to be deemed also to have passed the test to driving any
medium motor vehicle. The highest bench reasserted that the conferment of rule making
power by an Act does not enable the rule making authority to make rule which travels
beyond the scope of enabling Act or which is consistent therewith or repugnant thereto.

In Delhi Transport undertaking vs. BBL Hajeary11, the rules framed under Delhi
Corporation Act, 1957 was held ultra vires the Parent Act by the Supreme Court. Section
90(1) of the Delhi Corporation Act, 1957 provides that all the persons drawing salary less
than Rs.350 per month shall be appointed only by the General Manager of the Delhi
Transport Undertaking, and Section 95 provided that no person can be dismissed by any
authority subordinate to the appointing authority. The rules framed under the Act gave

9
AIR 1952 All 843
10
1982 (2) SCC 402
11
(1972) 2 SCC 744

11
 power to the General Manager to delegate all his powers to Assistant General Manager.
That Rule was struck down by the Supreme Court as it was in conflict with Section 90 and
Section 95 of the Parent Act, became sub-delegation of the power by the General Manager
to the Assistant General manager was not contemplated in the Parent Act.

iii. Conflicting with the Prescribed Procedure of the enacting Act

Sometimes the enabling Act lays down a procedure which must be followed by the
administrative authority while exercising rule-making power under it. If the procedure is
violated the rules may be declared invalid.

In Banwarilal vs. State of Bihar12, Section 12 of the Mines Act, 1952 made it obligatory on
the Central Government to consult the Mining Board, constituted under the Act, before
making rules thereunder. The rules framed without consulting the Board was held to be
invalid by the Supreme Court being ultra vires the procedure prescribed under the Parent
Act.

In determining the validity of the rules on this ground, the court looks to the spirit rather
than the letter of the law.

In Raza Buland Sugar Co. vs. Rampur Municipality13, the UP Municipalities Act, 1961
provided that the rule in the draft form must be published in the local Hindu daily. In this
case the draft rules were published in an urdu daily. The court did not accept the contention
in validity of rules arising out of a violation of a mandatory procedure clause on the ground
that what was important was the publication and not the Hindi daily.

The test of unreasonableness is applicable to delegated legislation as general principles and

also under fundamental rights. The law in this area is not settled.

Generally a statute cannot be challenged on the ground of unreasonableness. Similarly

delegated legislation also cannot be challenged on the ground of unreasonableness because
it is also a part of the statute, but in exceptional cases a statute as well as delegated
legislation can be challenged on the ground of unreasonableness.

In Mulchand vs. Mukand, [AIR 1952 Born. 296], the Bombay High Court held that the
statutory rules cannot be challenged on the ground of unreasonableness as they become a
part of statute. However in Bhushan Lal vs. State, [AIR 1952 All. 866], Allahabad High

12
AIR 1961 SC 849
13
AIR 1965 SC 805

12
 Court had held that the statutory rules can be challenged on the ground of
unreasonableness.

In B. Yadav v. State of Haryana14, the Supreme Court refused to give effect to the
retrospective operation of certain service rules on the ground of unreasonableness.

In State of Maharastra vs. Chandra Bhan Tale15, the Supreme Court struck down the
Bombay Civil Services Rules, which had provided that a convicted government employee,
even if he is in the appeal process will be paid Rs.1 as subsistence allowance. The court
held this provision in the Service Rules 151(1)(ii)(b) unreasonable and void.

In Selvi Travels vs. Union of India, [AIR 1993 Mad 215], Madras High Court held that the
Government Order, withdrawing the recognition of travel-agents issued under Section 5
and 24 of the Passport Act, 1967 illegal as it did not satisfy the test of reasonableness.

In one respect, the courts are bound to examine the reasonableness of

statutory rules as well as Acts of Parliament or Acts of Legislature. The Constitution has
guaranteed certain freedoms of the citizens. The freedoms are not absolute, the legislature is
permitted to impose by law, reasonable restrictions in respect of the rights generally in the
interest of the public. It is for the courts to determine if the restrictions imposed on the
freedom are reasonable.

iv. Mala fide

Mala fide means badfaith or ulterior motive Delegated Legislation can be challenged on the
ground of Mala fide, if it has no relation to the purpose for which the law making power
was delegated. If it is established that the rule making authority has acted with ulterior
motive, the court would reject the rule. But the court will not accept a mere accusation of
mala fides. In A.K. Ray vs. India, [AIR 1982 SC 710], the Supreme Court rejected the
argument that the government's failure to bring into force certain provisions of the 44th
Amendment of the Constitution was mala fides.

It is extremely difficult to prove mala fide before the court. Hence the ground of mala fide
for challenging a delegated legislation is resorted to in rate cases where strong proof of bad
faith is available.

14
AIR 1981 SC 561
15
1983 (3) SCC 387

13
 In England, in Mc. Eldowney vs. Forde, [(1969) 2 ALL.ER 1039], the Court held that a rule
could be challenged on the ground of Mala fide of the rule making authority or on the
ground that it had no relation with the purpose of which the rule making power was
delegated.

In an early case, in Kruse vs. Johnson, [(1898) 2 QB 91], Lord Russel C.J. observed that "If
(bye-laws) were manifestly unjust, if they disclosed bad faith, if they involved such
oppressive or gratuitous interference with the rights of those subject to them as could find
no justification in the minds of reasonable men, the courts night well say, 'parliament never
intended to give authority to make such rules; they are unreasonable and ultra vires."

v. Conflict with the terms of some other Statute or General Law

The validity of the delegated Legislation can be challenged on the ground that it is ultra
vires the general law. It takes place, when the delegated legislation makes a law in force
unlawful and unlawful act lawful.

In England, a conflict with the statute law is a ground of invalidity of delegated legislation
only where the empowering statute does not, expressly or by necessary implication; grant
power to override statute law. There are many examples of statutes which have explicitly
given power to override statute, Jaw and, in the so called Henary VIII Clause, power is
given to amend

even the Parent Act or any other Act for the purpose of bringing the Parent Act

smoothly into operation. Courts have held that the power of repeal or amendment of statute
law is Inconstitutional.

However, in re Delhi Law Act16, the Central Government framed the Life Insurance
Corporation of India, Class III and Class IV Employees (Bonus and Dearness Allowance)
Rules, 1981 in exercise of the powers conferred by Section 48 of the Life Insurance
Corporation of India Act, 1956 as amended by the Life Insurance Corporation
(Amendment) Ordinance, 1981.

Rule 3 of these Rules relates to the subject of bonus concerning Class III and Class IV
employees of the corporation. Clearly, Rule 3 seeks to supersede the terms of the 1974
settlement relation to bonus. The Court held that Rule 3 operating retrospectively cannot
nullify the effect of the writ issued in Life Insurance Corporation of India vs. D.J. Bahadur;'

16
AIR 1951 SC 332

14
directing the Corporation to give effect to the terms of the 1974 settlement relating to bonus
until superseeded by fresh settlement, an industrial award or relevant legislation.

vi. Encroachment upon the rights

Administrative rules and regulations can be challenged on the ground that they arbitrarily
interferes with the rights of the private citizen derived from the common law in the absence
of an express authority in the enabling Act.

vii. Waiver of the rule

Waiver or even relaxation of any rule by the administrative authority is not permissible
unless such a power exists under the rule because it may lead to discrimination,
arbitrariness and favouritism which is wholly opposed to the rule of law and constitutional
value.

viii. Vagueness

Rules can also be challenged on the ground that they are vague. Therefore, if a rule may by
the administrative authority doesnot lay down the date from which it will come into effect,
it can be challenged on the ground of vagueness.

DOCTRINE OF ULTRA VIRES AS JUDICIAL CONTROL OVER DELEGATED

LEGISLATION

'ultra' means 'beyond' and 'virus' means powers. The expression 'ultra virus' means 'beyond
one's power or authority'.

As per Halsbury's Laws of England, ultra vires, in its proper sense denotes some act or
transaction on the part of a corporation which although not unlawful or contrary to public
policy if done by an individual is yet beyond the legislative powers of the corporation as
defined by the statute under which it is formed or the statues which are applicable to it, or
by its character or memorandum of association. However this rule has now been extended
to delegated legislation and administrative powers. In England, the Parliamentary
legislation is beyond the reach of this doctrine because of Parliamentary Supremacy. But
delegated Legislation in no way partakes of this immunity which Acts of British Parliament
enjoy from challenge in courts. Delegated legislation not authorised by the statute has no
legal force and therefore, is ultra vires and void. The term "delegated legislation" is covered
by a generic term - 'statutory instrument' in England.

15
The doctrine of "ultra vires" simply envisages that an authority can exercise only so much
power as is conferred on it, by law. Therefore an action of the authority would be ultra vires
if it falls beyond the parameters of the power conferred on it. It being ultra vires would be
void.

According to the doctrine of ultra vires the delegated legislation must not go beyond the
scope of the Parent Act or Enabling Act and if it is found to be beyond the scope of the
Parent Act or Enabling Act, it would be ultra vires and void.

According to Schwartz, the administrative agency's power to make rules extends no further
than the authority given by the relevant statutory delegation. The Courts would apply the
doctrine of ultra vires to determine whether the challenged rules are within the power
conferred.

The doctrine of ultra vires is said to be the juristic basis of judicial review. The Courts have,
to a large extent, developed the subject by extending and refining this principle.

ultra vires may be understood as identical with outside jurisdiction Schwartz explains the
doctrine of ultra vires thus:

"The jurisdictional principle is the root principle of administrative law. The statute is the
source of agency authority, as well as of its limits. If an agency act is within the statutory
limits (or vires), its action is valid; if it is outside them (ultra vires), it is invalid. No statute
is needed to establish this, it is inherent in the constitutional positions of agencies and
courts."

According to Prof. Griffith, there are two principal forms of Judicial Control over delegated
legislation. The first relates to the procedure which the administration is required to follow
in making sub-ordinate laws and includes laying before Parliament of these laws. The
second relates to the substance of the subordinate laws themselves. It is quite possible that
the Act under which they are made does not infact give the necessary authority. These two
terms of control are i) Procedural ultra vires and ii) substantive ultra vires.

16
 PROCEDURAL ULTRA VIRES

If a statute requires certain forms to be observed, or certain preliminaries and procedures to

be completed before delegated powers are exercised, failure to comply with these
conditions constitutes the action illegal being ultra vires. This is known as procedural ultra
vires. In recent times, procedural fairness has emerged as a unique check on the executive
and courts may read such procedural fairness in delegated legislation.

Administration may be required by the enabling statute to consult with particular bodies
before making subordinate legislation. It may also be required to publish draft proposals
and to hear objections, meet representations. These are procedural requirements which may
be made necessary before enforcing any subordinate legislation. A failure to consult
particular bodies, publish or hear will invalidate any document subsequently made. Thus
any regulation, order etc. made in contravention of mandatory procedural requirements
would be invalidated by the courts as being ultra vires the enabling statute.

In England, a Minister of National Insurances is required to submit the draft of regulations,

which he proposes to make, to National Insurance Advisory Committee. If he failed to do
so, it would mean a procedural flaw in the making of regulations, and it would invalidated
by the Court.

In India, Section 59 of the Mines Act, 1952 empowers the Central Government to frame
regulations which are to be referred to the Mining Board in draft form for reporting about
their expediency. The Board is to be given reasonable opportunity. Failure to comply with
this procedure is ultra vires.

But there are some procedural requirements which are not mandatory, but recommendatory
or merely directory.

In such cases failure to take the prescribed procedure would not invalidate the action. But if
non-compliance of the directory procedural requirements defeat the intention of the statute,
then the provision would be regarded inoperative.

In case of procedural ultra vires, the court may not quash the delegated legislation
depending whether the procedure is held to be directory or mandatory. The procedural
defects cannot be regarded as fundamental or as invalidating the imposition of tax by a
local body where the tax proposal was not published in prescribed manner. If substantial

17
compliance is made, the omission would amount only as a mere irregularity and not ultra
vires.

The question arises as to whether the observance of the procedural requirements is

mandatory or directory. It is for the courts to determine the question finally. The Courts
take the view that while the directory procedural norms may be substantially complied with
the mandatory norms of procedure must be meticulously observed, while the non-
observance of directory norms may not be fatal, the non-observance of mandatory
procedure renders the rules ultra vires.

Since it is for the Courts to determine the nature of the procedural norms, the matter
depends on the fact as to how much significance the court attached to the procedure
prescribed in the enabling Act. While determining the question, various factors are taken
into account in arriving at the conclusion whether a particular provision is mandatory or
directory. Such as "the purpose for which the provision has been made, its nature, the
intention of the legislature in making the provision, the serious general inconvenience or
injustice to person resulting from whether the provision is read one way or the other, the
relation of the particular provision to other provisions dealing with the facts of a particular
case including the language of the provision."

The question as to whether a statute is mandatory or directory depends upon the intent of
the legislature and not upon the language in which the intent is cleared. The meaning and
intention of the legislature must be given and these are to be ascertained, not only from the
phraseology of the provision, but also by considering its nature, its design, and the
consequences which would follow from construing it one way or the other.

SUBSTANTIVE ULTRA VIRES

The expression 'substantive' refers to the extent, scope or range of the power delegated to
the administrative authority. It denotes the limits within which the power may be conferred
on the delegate.

If the subordinate or delegated legislation goes beyond the scope of authority concerned on
the delegate or it is in conflict with the Parent or Enabling Act, it is called substantive ultra
vires.

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 Substantive ultra vires is the most common ground to challenge the validity of delegated
legislation. It explains that the rules or orders made by the delegate must not go beyond the
scope of the power delegated by the Parent Act. If further requires that the delegated
legislation must not be inconsistent with the provisions of the delegating statute to be valid.

In Additional District Magistrate (Revenue) vs. Sri Ram17, the Supreme Court observed, "It
is well recognised Principle of the interpretation of a statute that conferment of rule making
power by an Act does not enable the rule making authority to make rules which travels
beyond the

scope of the enacting Act or which is inconsistent therewith or repugnant thereto."

In Agricultural Market Committee vs. Shalimar Chemical Works Ltd., the Supreme Court
has observed that:

"The effect of these principles is that the delegate which has been authorised to make
subsidiary Rules and Regulations has to work within the scope of its authority and cannot
widen or construct the scope of the Act or the policy laid down thereunder."

In Indian Council of Legal Aid and Advice vs. Bar Council of India18, the Supreme Court
has explained that in the application of the rule of substantive ultra vires, the Court would
first interpret the relevant statutory provisions to determine the scope of the power
delegated and then interpret the impugned delegated legislation and finally adjudge whether
the same was within or without the statutory power conferred.

In determining the question as to substantive ultra vires of delegated legislation, the Court
would consider the phraseology of the statutory provision delegating rule -making power. If
the power is conferred in too broad terms, the efficacy of the doctrine would be very much
diluted. In such a case, the Courts find it extremely difficult to hold a rule as falling outside
the scope of the power delegated. Besides, the judicial policy generally is to interpret the
delegating provision rather broadly.

In Mohd. Yasin vs. Town Area Committee19, the court has held that the bye-law which
goes beyond the scope of the Parent Act cannot be sustained and are ultra vires. In this
cases Section 115 of the UP Municipalities Act, 1916 authorises the Town Area Committee
to fix fee for the use of occupation of any immovable property vested in the management of

17
AIR 2000 SC 2143
18
AIR 1995 SC 691
19
AIR 1952 SC 115

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 the Committee by making bye-laws. The Committee framed certain bye-laws and vested all
rights and powers to levy and collect commission on sale or purchase of vegetables and
fruits in the town. It was held the delegated legislation give, beyond the scope of the Parent
Act and is ultra vires.

The administrative authorities exercising legislative power under the authority of an Act of
the Parliament must do so in accordance with the terms and objects of such statutes. To find
out whether administrative authorities have properly exercised the powers, the Court have
to construe the Parent Statute so as to find out the intention of the legislature. The existence
and extent of the powers of administrative authorities is to be affixed in the light. of the
provisions of the Parent Act. The 'Particular words' use on the provision delegating
legislative power to administrative authorities determines the limits of the delegated
authority. If vague words having a wide meaning are used then the control by the courts
becomes less effective. However, the words used are precise and define no meaning then
such control is far more effective. Thus judicial control of delegated legislation largely
depends upon the wideness or otherwise of the words used in the empowering provisions.

When powers of an extensive nature are given to the administration that it becomes way
difficult to prove that a certain action of administration was beyond its authority.

Sometimes, the Parliament empower administrative authorities to make rules and

regulations for carrying out the provisions of a particular statute. Such provisions confer
very wide powers upon the administration making it very difficult to find out the limits of
the powers of the administrative authorities. The result is that in such cases the doctrine of
ultra vires loses much of its value.

When the doctrine of ultra vires is ineffective ?

According to C.K. Allen, the result, at the present time, is that the doctrine of ultra vires is
greatly attentuated and indeed, with regard to a very number of executive powers, it may be
said to be completely paralysed. According to him, in the following circumstances, the
doctrine of ultra vires is ineffective.

1) Where the object or purpose of the enabling statute is so widely worded that almost
everything is covered by it.

2) The Ministers are often empowered to make such regulations as appear to them to be
necessary expedient for a specified purpose; or

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3) The distinction between administrative, judicial and legislative acts is very difficult to
be drawn.

According to Allen, the doctrine of ultra vires is displaced in these three cases to such an
extent it serves no useful purpose.

Further, the departmental legislation cannot be set aside on the ground of unreasonableness,
or as being repugnant, to fundamental concept of law. As regards the question of
reasonableness, the judicial pronouncements clearly lay down that once the powers are
conferred upon the particular agency and the exercise there of is within limits of authority
so conferred, the Courts would not interfere. As regards the second point i.e., the position
of delegated legislation repugnant to natural justice or common law, it is now settled that
Courts cannot interfere on this ground.

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 BIBLIOGRAPHY

1. C.K Takwani-Lectures On Administrative Law(Eastern Book Company) Sixth

Edition ,2017

2. S. P Sathe - Administrative Law(Lexis Nexis) Seventh Edition.

3. M.C Jain Kagzi- The Indian Administrative Law (Universal Law Publishing co.)
Seventh Edition.

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