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Part-71-One Pager Snapshot to the Cases on Delegation of Power and Delegated Legislation

Snapshot contains brief about Pre-Requisites of a Rule Making Power, can Rule Making power travel beyond the Statute, and how Power is delegated
a)      for framing the Rules in general,
b)      to prescribe the form and manner of doing a thing,
c)      to prescribe a Time Limit for doing a particular thing and
d)      by a general provision which provides for making rules for the purpose of carrying our provisions of Act sufficient, even though the specific provision for which Power has been exercised does not delegate the power

S.No

Case Subject

Case

Held

1

Power is delegated for
framing the Rules

Academy Of
Nutrition
Improvement ...
vs Union Of
India on 4 July,
2011

“Statutes delegating the power to make rules follow a standard pattern. The relevant section would first contain a provision granting the power to
make rules to the delegate in general terms, by using the words “to carry out the provisions of this Act” or “to carry out the purposes of this
Act”. This is usually followed by another sub-section enumerating the matters/areas in regard to which specific power is delegated by using the
words “in particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following
matters”.

2

How power Is
delegated to prescribe
the form and manner of
doing a thing

Sales Tax
Officer vs K. I.
Abraham on 7
April, 1967 1967
AIR 1823

In our opinion, the phrase "in the prescribed manner" occurring in s. 8(4) of the Act only confers power on the rule-making authority to
prescribe a rule stating what particulars are to be mentioned in the prescribed form, the nature and value of the goods sold, the parties to
whom they are sold, and to which authority the form is to be furnished. But the phrase "in the prescribed manner" in s. 8(4) does not take in the
time element. In other words, the section does not authorise the rule making authority to prescribe a time- limit within which the declaration is to be filed
by the registered dealer. In Stroud's Judicial Dictionary it is said that. the words "manner and form" refer only "to the mode in which the thing
is to be done, and do not introduce anything from the Act referred to as to the thing which is to be done or the time for doing it

3

How power is
delegated to prescribe
a Time Limit for doing a
particular thing

Sales Tax
Officer vs K. I.
Abraham on 7
April, 1967 1967
AIR 1823

The view that we have taken is supported by the language of s. 13 (4) (g) of the Act which states that the State Government may make rules for "the time
within which, the manner in which and the authorities to whom any change in the ownership of any business or in the name, place or nature of any
business carried on by any dealer shall be furnished." This makes it clear that the Legislature was conscious of the fact that the expression "in
the manner" would denote only the mode in which an act was to be done, and if any time-limit was to be prescribed. for the doing of the, act,
specific words such as "the time within which" were also necessary to be-put in the statute.

4

Can a general provision
which provides for
making rules for the
purpose of carrying our
provisions of Act
sufficient, if specific
provision for which
Power has been
exercised does not
delegate the power

Nelco Limited
vs UOI [2020]
116
taxmann.com
255 (Bombay)

Although Section 140 of CGST Act, 2017 at that time did not specifically delegated the power to prescribe time limit but High Court observing the
provisions of Section 164 (1) of CGST Act which empowers the government, on the recommendation of the GST Council, to make rules for
carrying out the provisions of the Act. Sub-section (3) of Section 164 declares that power to make a rule under this section also include the
power to give retrospective effect. A power to levy penalty in the contravention is declared in sub-section (4). Sub-section (2) of Section 164
is in most extensive terms. The Government can make rules for all or any of the matters which by this Act are required to be, or may be prescribed or
in respect of which provisions are to be or may be made by rules. It is clear from reading Section 164(2), that the Government has the power to make
rules not only for the matters already prescribed but those may be prescribed in future or in respect of which provisions are to be made by rules.
Thus, section 164 governs the most comprehensive range of rule-making power. Thus, it was held that the time limit in Rule 117(1) is traceable to the
rule-making power conferred in Section 164(2).

5

Pre-Requisites of a
Rule Making Power

General Officer
... vs Subhash
Chandra Yadav
& Anr 1988 AIR
876

“.....before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the
statute under which it is framed; and (2) it must also come within the scope and purview of the rule-making power of the authority framing the
rule. If either of these two conditions is not fulfilled, the rule so framed would be void.”

6

Can a Rule Making
power travel beyond
the Statute

Union Of India &
Ors vs S.
Srinivasan on
21 May, 2012

“...If a rule goes beyond the rule-making power conferred by the statue, the same has to be declared ultra vires. If a rule supplants any provision
for which power has not been conferred, it becomes ultra vires. The basic test is to determine and consider the source of power which is relatable
to the rule. Similarly, a rule must be in accord with the parent statute as it cannot travel beyond it.”