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Satyanarayana Raju, J.—These are applications for the issue of writs of prohibition restraining the Election Commissioners constituted under the Rules framed under the Madras Village Panchayats Act, 1950, from proceeding to hear and dispose of the election petitions filed before them. All the above petitions raise a common question for decision and can therefore be conveniently disposed of by a single judgment.
The contentions of the learned Counsel for the Petitioners may be stated thus: The Government, purporting to exercise the rule-making power conferred upon them, created a tribunal, vesting it with -all the powers of a Court to decide election disputes but characterising the said tribunal as persona desig-mata making its decision final. The constitution of the Election Commissioner is unauthorised, unconstitutional, illegal and void as the rule-making authority is not in fact empowered by the enabling statute to create such a tribunal Even it it is empowered, it is beyond the competence of the state legislature to so empower the Government as the creation of a tribunal as the one in question is primarily a legislative function, which is non-delegable in nature.
On the other hand the learned Advocate-General, appearing for the Government, submits that the rules iranied by the Government u/s 112 (2) (i) appointing Election Commissioners to hear election disputes under the Madras Village Panchayats Act are intra vires and valid that on a proper construction of the relevant provisions of the Village Panchayats Act, the Government is empowered to frame rides for the constitution of tribunals to hear election disputes; that the Election Commissioner so appointed is not a Court strieto senso and the conferring of such powers does not tantamount to an excessive or unconstitutional delegation.
In Velayutha Mudaliar v. District Munsiff of Vedhachalam, 1955 1 Mad LJ 201 (A), Rajagopala Ayyangar, J., had to consider the self-same question. The learned Judge has held that the rules framed by the Government u/s 112 (2) (i) of the Madras Village Panchayats Act constituting tribunals for the decision of election disputes are intra vires and valid. Arguments covering a wider range have been addressed on the present occasion, and Mr. T. Lakshmayya has placed before me the result of a laborious and painstaking study made by him and his colleagues of various authorities, Indian and foreign.
In 1884, the first Local Boards Act was passed constituting unions for townlets which are intermediary between villages and towns. That Act did not apply to all villages. The first Madras Village Panchayats Act was passed in 1920. In 1930, the Village Panchayats Act of 1920 was repealed and the Madras Local Boards Act was amended bringing within its scope the panchayats constituted under the Village Panchayats Act, thus placing the panchayats on the same footing as the unions. The Madras Local Boards Act of 1930, which brought about these changes, brought within its scope the village panchayat as the unit of local self-government in rural areas. Need, however, had been felt for a separate and comprehensive enactment in respect of village panchayats and this has resulted in the passing of the Madras Village Panchayats Act of 1950 which is intended to make a better provision, in a separate enactment, for the administration of village affairs, by panchayats.
It received the assent of the President on the 5th of July, 1950. This Act js based mainly on the analogous provisions contained in the Madras Local Boards Act and the Madras District Municipalities Act. All the three Acts are intended to serve the same purpose, viz., the creation of statutory self-governing bodies with autonomy in their own spheres and day-to-day administration subject to certain powers of control exercised by the State Government under certain conditions. A village panchayat, which was till then administered as part of the local board, has now been given a distinct entity with wider powers and functions.
The Village Panchayats Act of 1950 enacts relating inter alia to the constitution of panchayats.
Section 4(1) of the Act provides that a Panchayat shall be constituted for each village with effect from a date specified in that behalf in the notification issued u/s 3, Sub-section (1), by the inspector of Municipal Councils and Local Boards. The other provisions in the Act provide for the preparation of electoral rolls and for the constitution of panchayat boards by election as well as qualifications and disqualifications of persons to stand for election. Section 11 of the Act makes provision for the election of members and the term of office of sue) members. Section 12 provides for tire preparation and publication of electoral rolls and qualification for inclusion therein. Sections 15 and 16 indicate the disqualifications of candidates.
Broadly, the Act classifies Panchayats into "two categories: (a) class panchayats and (b) class II pan-chayats. The enactment itself does not provide for determining the manner of the election or for the decision of election disputes. This is felt to be prescribed by''the rules to be made by the Government u/s 112 of the Village Panchayals Act. That section empowers the Government to make rules generally to carry out the purposes of the Act and in particular to make rules as to all matters relating to electoral rolls or elections, not expressly provided for in the Act, including deposits to be made; by candidates standing for election and the. conditions under which such deposits may be forfeited, and the conduct of inquiries and the decision of disputes relating to electoral rolls or elections. Section 113 (3) provides that all rules made under the Act shall be published in the Gazette and upon, such publication, shall have effect as if enacted in the Act.
In pursuance of the powers conferred by Section 112 (1) and Section 112 (2)
(i), rules have been framed by the Government for the decision of disputes arising in or in relation to the elections held under the Act.
The rules provide as follows:
(1) Save as otherwise provided, no election held under the Act whether of a member, president or vice-president of a panchayat shall''be called in question except by an election petition presented in accordance with these rules to an Election Commissioner as defined in Sub-rule (2) by any candidate or elector against the candidate who has been declared to have been duly elected (hereinafter called the returned candidate) or if there are two or more returned candidates, against all or any such candidates.
(2) The Election Commissioner shall be-
(i) except in cases falling under Clause (ii), the District Munsif, having territorial jurisdiction over the place in which the office of the panchayat is situated, or, if there is more than one such District Munsif the Principal District Munsif; and (ii) where the Government so direct, whether in respect of panchayats generally or in respect of airy .class of panchayats or in respect of panchayats in "the same district or taluk, such officer of Government as to be designated by the Government in this behalf by name or by virtue of office:
Provided that an election petition may, on application, be transferred-
(a) if presented to a District Munsif under Clause (i), by the District Judge concerned to Anr. District Munsif within his jurisdiction;
(b) if presented to an officer of Government under Clause (ii), by the Government to Anr. officer of the Government,
Where an election petition is transferred to any authority under the foregoing proviso, such authority shall be deemed to be the Election Commissioner.
(3) An Election Commissioner exercising jurisdiction under these rules shall be deemed to exercise such jurisdiction as a persona designata and not in his capacity as a judge or other officer of Government as the case may be.
The other rules provide for the mode of presenting petitions, the contents of the petition, parties to be impleaded and the procedure to be followed and the ground upon which an election may be set aside.
Section 112 (2) (i) empowers the Government to make rules for the conduct of enquiries and the decision of disputes relating to election. That section runs thus:
112 (1). The Government shall, in addition to the rule-making powers conferred on them by any other provisions contained in this Act, have power to make; rules generally to carry out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, the Government may make rules-
(i) as to all matters relating to electoral rolls or elections, not expressly provided for in this Act, including deposits to be made by candidates standing for election and the conditions under which such deposits may be forfeited, and the conduct of inquiries and the decision of disputes relating to electoral rolls or elections.
Having regard to the very wide and comprehensive language used in the said Sub-section it is clear that the power to constitute tribunals for the decision of election disputes has been conferred on the Government by the Legislature. It cannot be seriously contended that'' the language employed in the Sub-section covers only matters of procedure relating to the conduct of enquiries but that it does not cover constitution of tribunals. The Village Panchayats Act itself makes no provisions for determining the manner of election or decision of disputes relating to the validity or legality of the elections and the Legislature must have necessarily intended to empower the Government to make rules in that behalf.
When the Legislature provided that the president, vice-president and members of the panchayat shall bo elected, it must have been in the mind of the Legislature that there would be disputes with regard to those elections and those disputes would require to be adjudicated upon. For the adjudication of disputes there must be a forum, and it is not unreasonable to infer that having itself not constituted a forum, it must have empowered the Government to create a forum for the purpose of deciding disputes regarding elections held under the Act. In fact, the Legislature has taken care to provide in Section 113 (3) that all rules made under the Act shall be published in the Gazette and upon such publication, shall have the effect as if enacted in the Act.
The right to vote and die right to stand at an election for a panchayat are the creations of the Madras Village Panchayats Act. Franchise is a privilege which is conferred by the Act, and if candidates and voters take the privileges, they must do so with all the limitations and conditions imposed by the Act. One of such limitations is the power conferred upon the Government to make rules to carry out the purposes of the Act and to provide for all ancillary or incidental matters arising out of or in connection with the conduct of elections. I am therefore of opinion that u/s 112 (2) (i) the Government is empowered to make rules for the constitution of tribunals for the decision of election disputes and the procedure to be followed by them.
It was then contended that the Election Commissioner is a "Court" and that the establishment of Courts not created by the Constitution and their jurisdiction are legislative functions which cannot be delegated by the Legislature in favour of the executive.
In support of this contention counsel relied upon Article 246 of the Constitution which runs thus:
246 (1). Notwithstanding anything in els. (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the ''Union List).
(2) Notwithstanding anything in Clause (3), Parliament, and, subject to Clause (1), the Legislature of any State specified in Part A or Part B of the First Schedule also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the ''Concurrent List.'') (3) Subject to els. (1) and (2), the Legislature of any State specified in Part A or Part B of the First Schedule has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the ''State List''.) (4) Parliament has power to make laws with respect to any matters for any part of the territory of India, not included in Part A or Part B of. the First Schedule notwithstanding that such matter is a matter enumerated in the State List.
He referred to item No. 95 in List I of the Seventh Schedule (Union List):
Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of die matters in this List; Admiralty jurisdiction.
Item 3 of List II (State List):
Administration of justice; constitution and organisation of all Courts, except the Supreme Court and the High Court; officers and servants of the High Court; procedure in rent and revenue Courts; fees taken in all Courts except the Supreme Court.
Item 65 of List II (State List):
Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List;" and item No. 46 in List III (Concurrent List);
Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this list;
and contended that the Legislature has to exercise this law-making power itself and cannot abdicate these functions and enable the executive to legislate. He referred me to several passages from various authorities in support of his contention.
It will be convenient at this stage to notice the passages from text-books and the decisions relied on by counsel for the Petitioners.
In Willoughby on the "Constitution of The United States", Volume 3, second edition, at page 1623, the rule is stated thus:
.........the jurisdiction of the inferior Federal Courts and the appellate jurisdiction of die Supreme Court are wholly within the control of Congress, depending as they do upon statutory grant.
In "American Constitutional System" by John Mabry Mathews, second edition (1940), at page 194, it has been stated:
Courts cannot exercise jurisdiction, however, unless it specifically conferred upon them by Constitution or statute.''
In "Administrative Law" by Reginald Parker, 1951 edition, the following is found in foot-note 27 at page 11:
The king hath no prerogative but that which the law allows him.
In Stephen''s "Commentaries on the Law of England". Volume 3, 1950 edition, at page 271, it is stated that the power "to constitute a Court" can be conferred only by law. Its source may be either common law or statute law but nothing else.
In "The Constitution and Jurisdiction of Courts of Civil Justice in British India" by Sir Ernest John Trvelyan, 1923 edition, at page 2, dealing with the constitution and jurisdiction of Courts, the author stated:
The other Courts of justice in British India over their establishment and jurisdiction to enactment of the Indian Legislature made in pursuance of powers given by Parliament.
Except by authority which has been committed to it by the Legislature a Court is not competent to try a case or to perform any other judicial act.
In Jecker Tt Al v. Montgomery, (1851) 14 Law Ed 240 at p. 247 (B) it is stated as follows:
Every Court of die United States, therefore, must derive its jurisdiction and judicial authority from die Constitution or the Laws of the United States. And neither the President nor any military officer can establish a Court in a conquered country, and authorise it to decide upon the rights of the United States, or of individuals in prize cases, nor to administer the laws of nations.
Then the following passage from State of Bombay Vs. Narothamdas Jethabai and Another, at p. 132:AIR 1951 SC 69 at p. 88) (C) has been cited:
It is to be noted that the right to set up Courts to provide for the whole machinery of administration of justice has been given exclusively to the Provincial Legislature. u/s 101 of the North America Act, the Parliament of Canada has a reserve of power to create additional Courts for better administration of the laws of Canada but the Indian Constitution Act of 1935 does not give any such power to the Central Legislature. Courts are to be established by the Provincial Legislature alone.
In Abdullabhai Lalji and Another Vs. The Executive Committee, at p. 459:AIR 1916 Bom 298 at p. 299) (D), the following occurs:
It is well established that a distinct unequivocal enactment is required for the purpose of either adding to or taking away the jurisdiction of a Court. The Resident''s Court had already jurisdiction under the Aden Act of 1864 to hear and determine all cases of whatever nature and whatever value. The Rule 12 read-as it has been by the Assistant Resident amounts, to use the words of Lord Watson in King v. Henderson, ( 1898 AC 720 at p. 729) (E) to the creation of a jurisdiction which the Legislature withheld. It would, if valid, force the aggrieved rate-payer to accept a final decision by a procedure in which appeal by way of case stated to this Court would not be open. No one disputes that such a result may be obtained by legislative enactment by a competent authority but authority to achieve such a result by the subordinate legislation of rules cannot be implied, for the presumption is the other way.
In Sashi Bhusan Ilazra v. Sheikh Eshabar Ali Nazir, 19 Cal WN 736 at p. 737: ( AIR 1916 Cal 738 at p. 739) (F), it has been stated thus:
Before tire jurisdiction of the ordinary Courts of the country can be excluded by a Special Court, namely, the Revenue Court, there must be the clear words in the statute excluding such, jurisdiction.
Then Mr. Lakshmayya endeavoured to establish that an Election Commissioner deciding election disputes does not function as a persona designatae it as a Court and he relied upon K. Parthasarathi Naidu Garu Vs. C. Koteswara Rao Garu and Another, (FB) (G). It was there held that a District Judge enquiring into an objection to the elections of the President of a Taluk Board under R. 1 of the Rules made by tire Local Government under Madras Act (XIV of 1920), is not a persona designata, but a ''Court'' subject to the revisional jurisdiction of the High Court u/s 115 of the CPC Code, and that the decision of the District Judge in the enquiry is revisable by the High Court.
The next decision cited in this connection is Mt. Dirji Vs. Smt. Goalin, (FB) (H). Fazl Ali J., (as ho then was) delivering the judgment of the Full Bench, with which Harries, C. J. and Manohar Lall J. agreed held that a Commissioner appointed under the Workmen''s Compensation Act is a Court subordinate to the High Court in the sense in which the expression is used in Section 115 -of the CPC Code.
In support of the same contention, the learned Counsel cited the following decisions: K. Joggayya Vs. King, at p. 144 (I); Sultan Ali Nanghiana v. Nur Hussain, AIR 1949 Lah 131 at p. 148 (FB) (J); Kishen Chand and Co. v. Nur Mohammad, AIR 1949 Lah 94 at p. 102 (K); Bazler Rahman Khandakar Vs. Amiraddin and on his death, his Sons Apsaraddi and Others, (L) and Goonesinha v. Dekretser, AIR 1945 PC 83 (M).
I have been next referred to a passage in the "Australian Constitution" "by Nicholas, 1948 edition, page 267, which is to- the following effect;
When a State Judge is appointed to give a decision on the rights of an applicant it is presumed Uaat he is sitting as a Court............but where a Judge has been appointed to make a finding upon which Parliament may act he is a persona designata and no appeal lies from his decision.
In C.K. Ramaswami Goundan Vs. Muthu Velappa Gounder and Others, (N), Krishnnn and Venkatasubba Rao JJ. had to consider whether a District Judge in disposing of petitions filed under the Rules framed u/s 7 of the Madras Local Boards Act (XIV of .1920), acted as a Court or as a persona designata. On a consideration of the authorities the learned Judges held that the District Judge did not act as a persona designata but as a Court.
30a. In O. A. O. K. Lakshmanan Chettiar Vs. J.S. Kannappar and Others, (O), a Full Bench of the Madras High Court considered the question as to whether tire Chief Judge of the Presidency Small Cause Court at Madras, in deciding a revision petition preferred to him under R. 4 of the rules made by the Governor-in-Council under the Madras City Municipal Act, 1919, acted as a persona designata or as a Court. The Full Bench pointed out that nothing in the former decision of the Court in K. Parthasarathi Naidu Garu Vs. C. Koteswara Rao Garu and Another, (G), precluded them from holding that under the Municipal Act and the rules the Chief Judge acts as a persona designata and not as a Court. They followed the Full Bench decision in The Municipal Corporation of Rangoon v. M. A. Shakur, ILR 3 Rang 560: (AIR 1926 Rang 25) (FB) (P).
In Thirumala Chettiar Vs. Chellam Pillai, (Q), Curgenven and Pakenham Walsh, JJ., held that:
An Election Commissioner deciding a case of disputed election under the Madras Local Boards Act exercises judicial functions and it is competent for the High Court to issue a writ of certiorari against his order.
Referring to the Full Bench decision in K. Parthasarathi Naidu Garu Vs. C. Koteswara Rao Garu and Another, (G) which, held that an Election Commissioner was not a persona designata but a Court, the learned Judges pointed out that die amended rules made under the Local Boards Act, though designed to exclude the jurisdiction of the High Court to issue a writ, had not the effect of altering the character of the enquiry which the Election Commissioner had to undertake or in making it any the less a proceeding of a judicial character. They held that the Legislature could not directly or indirectly deprive the High Court of tire jurisdictional powers which it has in the case of all judicial proceedings and indeed the amendment could not have contemplated any such result.
The learned Counsel for the Petitioners then referred me to the following passage in Salmond''s "Jurisprudence'''', 10th edition, at page 125:
The administration of justice properly so called, therefore, involves in every case two parties, the Plaintiff and the Defendant, a right claimed or a wrong complained of by the former as against the latter, a judgment in favour of one or the other, and execution of this judgment by the power of the State if needed be. We have now to notice that the administration of justice in a wider sense includes all the functions of Courts of justice, whether they conform to the foregoing type or not. It is to administer justice in the strict sense that the tribunals of the State are established, and it is by reference to this essential purpose that they must be defined. But when once established, they are found to be useful instruments, by virtue of their constitution, procedure, authority, or special, knowledge, for the fulfillment of other more or less analogous functions. To these secondary and non-essential activities of the Courts, no less than to their primary and essential functions, the term administration of justice has been extended. They are miscellaneous and indeterminate in character and number, and tend to increase with the advancing complexity of modern civilization.
The distinction between a tribunal and a Court in the strict sense may be: indefinable but appreciable. It has been pointed out by Lord Shankey L. C, in Shell Company of Australia, Limited v. Federal Commr. of Taxation, (1931) AC 275 296 (R) thus:, The authorities are dear to show that there are many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power..............
In that connection it may be useful to enumerate some negative propositions on this subject:
A tribunal is not necessarily u Court in this. strict sense because it gives a final decision.
Nor because it hears witnesses on oath.
Nor because two or more contending parties appear before it between whom it has to decide.
Nor because it gives decisions which affect the rights of subject.
Nor because there is an appeal to a Court.
Nor because it is a body to which a matter is referred by Anr. body.
Again at page 298, the I mil Chancellor stated:
An administrative tribunal may act: judicially, but still remain an administrative tribunal as distinguished from a Court strictly so called. Mere externals do not make a direction to an administrative officer by an ad hoe tribunal an exercise by a Court of judicial power.
There is a valuable discussion on this aspect of the matter in Justice and Administrative Law by Dr. Robson, 3rd edition at page 8, et seep.
The following passage from "Administrative Law'''' by Reginald Parker, 1951. edition, at page 131, is apposite:
In the broad senses of the term, an administrative agency is any governmental authority other than Congress or the Courts. The term Court, however, does not embrace every governmental authority that decides disputes, especially two-party disputes, in a typically judicial fashion and that is clothed with the foremost characteristic of Courts viz., independence from higher authority. Thus, the National Labour Relations Board is such an authority, but it is not a (Joint. Rather, the term Court is to be confined to the traditional Courts in the federal system, these that are regulated by the Federal Judicial Act, such as the ordinary district and appeals Courts as well as the Court of claims.
That there is an essential distinction between a Court and a tribunal is also clear from a reference to Article 227 of the Constitution, which provides thus:
Every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
This Article makes a distinction between Tribunals and Courts.
In M. Abdul Wahid Sahib Vs. Dewanjee Abdul Khader Sahib, (S), Yahya Ali J" had to consider whether an authority appointed by ''it notification of the Government to act as an appellate authority to hear objections against orders passed by the Rent Controller u/s 12 of the Madras Buildings (Lease and t Rent Control) Act functions as a persona designata of as a Court subordinate to the High Court and whether an application for transfer of an appeal before such an authority is maintainable. The learned Judge held that the teat to be applied in such cases was whether the appointment of the authority was in his personal capacity or as a Court, and that from the language of Section 12 it was clear that the District & Subordinate Judges mentioned by the notification were appointed persona designata and not as Courts. The learned Judge held that an application u/s 24 of the CPC for transfer of an appeal pending before such an appellate authority would not be maintainable.
This decision was followed by Clark, J., in Chimilah Thevar v. F. M. Radsha, 1948 1 Mad LJ 314: AIR 1948 Mad 439 (T), in which the question was whether a revision was competent against the order of Subordinate Judge appointed as an appellate authority to entertain appeals against the order of the Rent Controller. The learned Judge held that from the language of 5. 12, Madras Buildings (Lease and Rent Control) Act, it was clear that a District Judge or a Subordinate Judge notified as an appellate authority for the purpose of the Act, was appointed as a persona designata and not as a Court and that no revision could be entertained by the High Court u/s 115 against an order passed on appeal by such an appellate authority.
To the same effect is the decision in Rajam Ayyar v. Pavanambal, 1949 1 Mad LJ 49 : AIR 1949 Mad 787 (U), where Mr. Justice Mack followed the decisions in M. Abdul Wahid Sahib Vs. Dewanjee Abdul Khader Sahib, (S) and 1948-1 Mad LI 314: (AIR 1948 Mad 439) (T).
In C. Abboy Reddiar Vs. Collector of Chingleput at Saidapet and Others, (V), Chandra Reddy, J., considered whether an arbitrator appointed u/s 19 (2) of the Defence of India Act functioned as a persona designata or as a Court. The learned Judge held that the arbitrator was appointed as a persona designata and not as a Court against whose decision a petition in revision lies to the High Court u/s 115 of the CPC Code.
In K. Parthasarathi Naidu Garu Vs. C. Koteswara Rao Garu and Another, (FB) (G), what was decided was that a District or a Subordinate Judge in deciding an election petition presented under the rules issued by the local Government under the Local Boards Act was acting not merely as a persona designata but as a Court exercising original civil jurisdiction. They construed the expression ''Judge'' in the relevant provision of law as a Court.
In the later Full Bench case in O. A. O. K. Lakshmanan Chettiar Vs. J.S. Kannappar and Others, (O), it was held that the Chief Judge of the Presidency Small Cause Court at Madras, in deciding a revision petition preferred to him under Rule 4 of the rules framed by the Governor-in-Council under the Madras City Municipal Act, does not function as a Court for purposes of Section 115, CPC Code,. but acts only as a persona designata. At page 127 of the report it is stated:
Looking at the Municipal Act, it is clear that the draftsman of that Act was quite alive to the distinction between the Court of Small Causes (vide Section 59) and the Chief Judge of that Court (vide Section 54). It is difficult to restrict the inference that when the Chief Judge is referred to in the Act he was meant to act as a person.
In Kiron Chandra Bose Vs. Kalidas Chatterji, (W), Mukherjea, J. (as he then was) and Blank J., considered the question whether the District Judge exercising powers under the House Rent Control Order was a Court and whether his order could be revised by the High Court u/s 115, CPC . The learned Judges propounded the test for determining whether the District Judge functions as a Court or as a persona designata, thus:
The authoiities on this point cannot be said to be uniform but it seems to be established that when a statute provides that a particular matter shall be determined by ''a Court'' and not by an. individual Judge, the officer presiding over the Court must be deemed to exercise his jurisdiction as ''Court'' and not as persona designata....
Difficulties do arise however when the expression used is not ''Court'' but ''Judge'' and in such cases one has got to look to the entire provision for the purpose of determining whether the matter is to be heard by the Judicial Officer as a Court or in his own personal capacity.
It has been held that the District Judge in'' exercising the powers under para. 12, bengal House Rent Control Order, does not act as a Court and consequently his orders are not revisable by the High Court u/s 115, CPC Code. The reasoning by which the learned Judges reached this conclusion, which is at page 249 of the report, is instructive:
It is only a legislative enactment or a rule having statutory authority that can constitute a Court or invest a Judge with authority to determine matters outside his ordinary jurisdiction. The Bengal House Rent Control Order of 1942 is an order made by the Governor in the exercise of his powers under Rule 81 (2) (bb), Defence of India Rules. It is not a case of the exercise! of legislative powers by the Governor, as are contemplated by Sections 88 to 90, Government of India Act, 1935. II: is an instance of an executive act pure and simple.
In Hirji Virji Jangbari Vs. The Government of Bombay, X), Wadia, J., held that an arbitrator appointed u/s 19, Defence of India Act, is not a Court and therefore an award made by him fixing the amount of compensation payable to the claimant is not an ''order'' within the meaning of Section 8, Court-fees Act.
In Shridhar Atmaram v. Collector of Nag-pur, AIR 1951 Nag 90 (Y), the Nagpur High Court held that a tribunal constituted under the NagpurTm-provement Trust Act was not a Court Subordinate to the High Court and that the High Court had consequently no revisional jurisdiction over the tribunal u/s 115, CPC Code. This conclusion was arrived at by a reference to Section 3 of the Code of Civil Procedure, which runs thus:
for the purposes of this Code, the District Court'' is Subordinate to the High Court, and every ''Civil ''Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.
The learned Judges held that Section 115, CPC Code, could have application in respect of the Courts mentioned in Section 3 of the Code and not in respect of those Courts which have been given exclusive jurisdiction by express provisions of law or by necessary implication. They held that where the legislature by clear words creates a new tribunal self-contained and exclusive, then the matter which needs to be considered is not whether the jurisdiction of the High Court is taken away but whether it was at all there. The same view was taken in Mohidcen v. Bukshi Item, ILR 3 Rang 410: AIR 1926 Rang 33 (FB) (Z).
In ILR 3 Rang 560: AIR 1926 Rang 25 (FB) (P), the question was whether a person who became a sub-contractor employed by the Rangoon Corporation became disqualified for offlco by reason of Section 12 of the Rangoon Municipal Act. On an application to the Chief Judge of the Small Cause Court, Rangoon, tinder Section 14 of that Act, the learned Judge held that he had become disqualified. The matter was taken up in revision to the High Court. A Full Bench of the Rangoon High Court has held that the Chief Judge of the Small Cause Court, Rangoon, in performing the functions assigned to him by Section 14 of the Rangoon Municipal Act, acts as a persona designata and not as a Court, and that being so, the High Court had no power to interfere in revision with his decision either u/s 115 of the CPC or u/s 107 of the Government of India Act.
In Aziz v. Kilyoboy, ILR 4 Rang 304: AIR 1927 Rang 1 (Zl), a Full Bench of the Rangoon High Court held that the Chief Judge of the Rangoon Small Cause Court, when exercising; the powers vested in him by Section 18 of the Rangoon Rent Act, exercised those powers not as a Court but as persona designata and therefore, his decision was. not subject to the revisional jurisdiction of the High Court.
A consideration of the principles established by the foregoing authorities leads to the following conclusion:
When by a legislative enactment or a rule having statutory authority, a new authority is constituted for the purpose of adjudicating questions concerning rights which are themselves the creations of the statute, and a Judge or a presiding officer of a Court is empowered to perform the functions of that authority, then the intention of the Legislature must be deemed to be that the Judge or the presiding officer should perform those functions as a persona designata and not as a Court. If so much is conceded, it follows that the District Munsif, who has been directed to perforin the functions of an election commissioner for the decision of election disputes, is a persona designata and not a Court stricto senso.
The question then is whether the constitution of the election commissioner who is not a Court but is a persona designata, is a legislative function. It is undoubted that only a legislative enactment or'' a rule having statutory authority that can constitute a Court or invest a Judge with authority to decide matters outside his ordinary jurisdiction. But can it be said that the constitution of art election commissioner under die rules framed by the Governor in pursuance of the powers vested in him u/s 112 (2) (i) of the Madras Village Panchayats Act, is a case of the exercise of legislative .power? The constitution of Courts is no doubt a legislative function but the creation of an authority, under the Panchayats Act, which is not a Court in any sense, is not in my view the exercise of legislative power, and if the Legislature confers the power to constitute such an authority on the executive, it cannot be said that there has been a delegation of legislative power which renders the constitution of the authority illegal, hi this context it is relevant to refer to item 5 of List II (State List) which is as follows:
Local Government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.
The power conferred on the State Legislature in item 5 necessarily carries with it all ancillary and incidental power. The constitution of an authority for the purpose of local Government or village administration (in the present case of a village panchayat necessarily gives the legislature the power to provide for the election of the bodies which shall bo in control of the village adminstration and the appointment of authorities for the decision of disputes arising in those elections is ancillary or incidental to (.he powconl erred on the State Legislature in tin; mailer of the constitution of local authorities for the purpose of local self-government or village administration.
The further submission of the learned Counsel for the Petitioners is that this law making power must be exercised by the legislature itself and it cannot abdicate this function and empower die Government to legislate. In support of this contention he relied upon a number of passages from various authorities.
In Opp Cotton Mills v. Administrator of the Wage and Hour Division of the Department of Labour, Evans Cases on American Constitution Law, pp. 647 and 649 (Z2), it is stated as follows:
The adoption of the declared policy by Congress and its definition of the circumstances in which its command is to be effective, constitute the performance, in the constitutional sense, of the legislative function.
The essentials of the legislative function have been given as "the determination of the legislative policy and its formulation as a rule of conduct."
In Yakus v. United States, American Constitutional Decisions by Charles Fairmon, pp. 104 and 114 (Z3), the following passage occurs .
the constitution as a continuously operative charter of Government does not demand the impossible or the impracticable. It does not require that Congress find for itself every fact upon which it desires to base legislative action or that it makes for itself detailed determination which it has declared to be pre-requisite to the application of the legislative policy to particular facts and circumstances impossible for Congress itself properly to investigate. The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct �.These essentials are preserved when congress has specified the basic conditions of fact upon whose, existence or occurrence, ascertained from relevant data by a designated administrative agency, it directs that its statutory command shall be effective.
Administrative Agencies and the Courts by Frank E. Cooper, 1951 edition (page 31) contains the following:
The principles against delegability of essential powers still retain vitality at least to the extent of invalidating delegations winch would render one department of Government subject to the control of Anr. department or which would confer uncontrolled discretion on administrative agencies in matters affecting substantial property rights or rights of personal liberty.
Essentially, the doctrine of separation of powers concerns little more than the ''fundamental necessity of maintaining each of the three general departments of Government entirely free from the control or coercive influence, direct or indirect, of each Ors. ". The exercise of powers by one agency or department of Government which logically should be exercised by Anr. is accordingly countenanced as a matter of practical necessity; and administrative agencies are permitted to exercise powers which logically belong to the Courts, or to die legislature, so long as the .independence of the Courts or of the legislature is not impaired...... But when an attempt is to do to vest in an administrative agency, or when ;n L administrative agency or executive officer claims powers which could be exercised in such a way as to deprive the legislature or the Courts of their constitutional prerogatives, then there has been a violation of die essential constitutional precept.
At page 33 it is stated thus:
To the extent suggested by such decisions, tire doctrine of separation of powers retains vitality in the field of administrative law. An administrative agency, it seems safe to say, may not validly be granted powers which would permit it to displace the Courts, or die legislature, or the executive, in matters constitutionally committed to these departments. Nor may an agency controlled by one department to be given powers which would permit that department to control the Ors. .
The doctrine of separation of powers still retains vitality, in at least a negative aspect, in connection with the rule that Courts (at least, the federal constitutional Courts) will not undertake the discharge of any non-judicial duties.
In Field v. Clark, (1892) 62 Law Ed 294 (Z4), it is stated as follows:
That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of Government ordained by die Constitution....
The true distinction, as Judge Ranne speaking for the Supreme Court of Ohio has well said, is between the delegation of the power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.....The Legislature cannot delegate its power to make a law;
but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would lie to stop the wheels of Government. There are many things upon which wise and useful legislation must depend which'' cannot be known to the law-making power, and, must, therefore, be a subject of inquiry and determination outside of the halls of legislation.
In United States v. Shvcvoport Grain and E. Co., (1932) 77 Law Ed 175 at p. 179 (Z5), it is stated thus:
That the legislative power of Congress cannot be delegated is, of course, clear. But Congress may declare its will, and after fixing a primary standard, devolve upon administrative officers the ''power to fill up the details'' by prescribing administrative rules and regulations.
The learned Counsel for the Petitioners then quoted extensively from the decision of the Supreme Court in The Delhi Laws Act case, 1951. SCJ 527 at p. 571: (AIR 1951 SC 332 at p. 355) (Z6), in support of his contention that the conferment of power on the Government to make rules for the constitution of Tribunals for the decision of election disputes is ultra vires of the State Legislature as being excessive delegation or abandonment of legislative power. Fazl Ali J., who delivered the judgment on behalf of the majority Judges in The Delhi Laws Act case, (Z6), summarised his conclusions in this behalf as follows:
The legislature must normally discharge its primary legislative function itself and not through Ors. .
Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do every thing which is ancillary to and. necessary for the full and effective exercise of its power of legislation.
It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency acts as a subordinate authority and does not become a parallel legislature.
The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed, enables the American Courts to cheek undue and excessive delegation but the Courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the Legislature to delegate, these being its good sense and the principle ''t that it should not cross the line beyond which delegation amounts to "abdication and self effacement.
In addition, to the weighty opinion, of the "Supreme Court above set out may be added the following passage (at page 145) from Parker on Administrative Law, which illustrates the modern tendency even in the United States of America: Sept.) 1957 Andh. Pra. D F./26
Yet, until the latter part of the 19th century, the power to regulate was sparingly granted to the executive branch. After the Field case was decided in favour of the Government, however, administrative; agencies were entrusted to an increasing degree with implementing the lawmaker''s task. And it was not only the President, whose quasi-legislative power the Courts sanctioned; under the impact of modern life it was necessary to give authority to issue regulations to the heads of the Departments, with their staff of specialized experts. This, too, has been upheld by the Courts, and finally, so called independent agencies, not entirely subject to the President, were created for the specific task of making regulations ....
It is not our task to evaluate or criticize political developments. All we can do is to note the fact that the United States, like every other country in the world, has found itself forced to leave .more and more legislative tasks to specialized and often cxpeditive administrative agencies.
The decision in United States v. Grimaud, (1911) 55 Law Ed. 563 (Z7), contains an exhaustive statement of tho law as to permissible delegation in the United States. It is stated at page 567 thus:
By whatever name they are called, they refer to matters of local management and local police.
....''They are'' not of a legislative character in the highest sense of the item; and as an owner may delegate to his principal agent the right to employ subordinates, giving to them a limited discretion, so it would seem that Congress might rightfully in trust to the local legislative authorities the determination of minor matters.
It must be admitted that it is difficult to define the line which separates legislative power to make laws, from administrative authority to make regulations. This difficulty has often been recognised and was referred to by Chief Justice Marshall in Wayman v. Southard, (1825) 10 Wheat 1 at p. 43: 6 Law Ed. 253 at p. 262 (Z8), where he was considering the authority of Courts to make rules. He there said: ''It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to Ors. powers which the legislature may rightfully exercise itself. What were these non-legislative powers which Congress could exercise, but which might also be delegated to Ors. , was not determined, for he said: ''The line has not been exactly drawn which separates these important subjects which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.'' "From the beginning of the Government, various Acts have been passed conferring upon executive officers power to make rules and regulations - not for the Government of their departments but for administering the laws which did govern. None of these statutes could confer legislative power. But when Congress had legislated and indicated its will, it could give to those who were to act under such, general provisions ''power to fill up the details'' by the establishment of administrative rules and regulations, the violation of which could be punished by fine or imprisonment fixed by Congress, or by penalties fixed by Congress, or measured by the injury done.
At page 569, the following passage is quoted from (1892) 143 US 649 at p. 694: 36 Law Ed. 294 at p. 310 CM).
The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or stale of things upon which the law makes or intends to make its own action depend. To deny this would be to slop the wheels of Government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must therefore be a subject of inquiry and determination outside of the halls of legislation.
That ''Congress cannot delegate legislative power is a principle universally recognized as vital to the integrity and maintenance of the system of Government ordained by the Constitution''..... But the authority to make administrative rule is not a delegation of legislative power, nor are .such rules raised from an administrative to a legislative character because the violation thereof is punished as a public offence.
In 79 Law Ed. 474 there is an instructive article dealing with the permissible limits of the delegation of legislative power. . At page 479 it is stated thus:
It must be recognized at the outset that there is no absolute and universal formula for determining in all cases the powers which must be exercised by the legislative body itself and those which may be delegated by the legislature to some subordinate or administrative agency. The line of demarcation between those essentially legislative functions which must be. exercised by the legislature itself and those of an administrative nature, or involving more details, which may be delegated to Anr. body or officer, is very vague and (tucluating, and is often difficult to define or discern.
The following passage relating to the doctrine of separation of powers is very instructive:
The division of governmental powers into executive, legislative, and judicial, while of great importance in the creation or organization of a state, and- from the view point of constitutional law and otherwise, is not an exact classification, No such exact delimitation of governmental powers is possible.
The separation of the powers of Government is complete only in theory. This division of powers is abstract and general. Their complete separation in actual practice is impossible. The complex relations of modern society and business have produced many situations which can be adequately dealt with only by some officer or body possessing powers inherently partaking to some extent of two or all of the three basic Governmental functions.
The inhibition against the delegation of legislative powers generally is, at least as regards the. Federal Government, based upon a theory of Government, viz., that the three departments of Government, the legislative, the executive, and the judicial, shall be kept separate. But the Government must be a practical one capable of meeting the everyday requirements of a Government: this requirement is basic and paramount to any abstract theory as to the method of carrying out the powers of Government. It is more important that .the Government functions as a Government, than that the details of its operation be always consistent with the preconceived theories, as to what the Government should be. Our Government is first of all a Government capable of functioning properly as such, and only secondary one of separated powers.
If the legislature were strictly required to make provision for all the minutiae of regulation, it would, in effect, be deprived of the power to enact effective legislation on subjects over which it has undoubted power. The denial by a Court of the power to delegate in such cases, on the pretext that the legislature is abdicating its own powers and that the Court is preserving the legislature''s prerogative for it, is as grotesque and sardonic as to hold unconstitutional as denying the workers the right to contract, statutes admittedly enacted for the protection of workers.
It is not necessary for the legislature to ascertain the facts of, or to deal with, each case. Since legislation must often be adapted to complex conditions involving a host of details with which the legislature cannot deal directly, the constitutional inhibition against delegating legislative authority does not deny to the legislature the necessary resources of flexibility and practicality, enabling it to lay down policies and establish standards, while leaving to selected instrumentalities the making of subordinate rides within prescribed limits and the determination of facts to which the policy as declared by the legislature shall apply. Without this power, legislatures would often be faced with the anomaly of possessing a power over a given subject, but being unable to exercise it.
The Supreme Court said: ''Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some fact, or the state of things upon which the enforcement of its enactment depends, would be ''to stop the wheels of Government'' and bring about confusion, If not paralysis, in the conduct of the public business.
It does not necessarily follow from the fact that the power delegated was one which the Legislature itself might rightfully exercise, that it was a legislative power or one which could not constitutionally bo delegated, since the Legislature often exercises powers of an executive or administrative character.
It is clear that the legislative body may delegate some powers which,'' it might lawfully exercise itself. While the supreme legislative power cannot l)e delegated, there are many powers, so far legislative that they may properly be exercised by the Legislature, which may, nevertheless, be delegated.
The foregoing statement of principles makes it clear that while the Legislature cannot abdicate its general law-making powers, it may authorise Ors. to do things which it might properly do, hut which it cannot conveniently or properly perform and that it is not every grant of power by the Legislature involving the exercise of discretion and judgment that amounts to a delegation of legislative power. A legislative body may, after declaring a policy and after fixing a primary standard, confer upon the executive Or administrative, officers the power to prescribe the administrative rules and regulations to promote the purpose and spirit of the legislation and to carry it into effect; and the action of the Legislature in giving such rules and regulations the force and effect of laws does not violate the constitutional inhibition against delegating the legislative function.
In any view, I am in en tic: agreement with the view of Rajagopala Ayyangar, j., in 1955-1 Mad LJ 201 (A), that the legislative practice in India supports the validity of this type of legislation. The learned Judge has, referred to a number of enactments and held there is a large body, of legislative practice which is sufficient to sustain the validity of this rulemaking power.
I may sum up the conclusions, which I have reached as a result of the foregoing discussion:
(1) Section 112 of the Madras Village Pauchayats Act confers on the State Government the power to make rules governing the constitution of tribunals for the decision of election dispute''s.
(2) It is only a legislative enactment or a rule having statutory authority that can constitute a Court or invest a Judge with authorily to determine matters outside his ordinary jurisdiction.
(3) The creation of an authority distinct from a Court is not a legislative function.
(4) The Election Commissioner constituted under the rules framed under the; Madras Village Panchayats Act is not a Court but he performs the functions assigned to him as a persona designata.
(5) The conferring of power to frame rules relation to the decision of election disputes on the State Government does not amount to excessive delegation or abandonment of legislative power.
(6) The legislative practice in India supports the validity of this type of legislation.
In view of the foregoing conclusion, it must be held that the rules framed by the Government u/s 112 (2) (i) constituting the Election Commissioner to hear election disputes under the Village Panchayats Act are intra vires and valid.
In the result, these writ petitions must fail and they are dismissed with, costs.. Advocate''s fee Rs. 100 in each writ petition.