Under subsection (2), the schemes may relate to land use, zoning and land reservation, public buildings, Industry, etc. Subsection (3) empowers the Federal Government to add to, alter or amend the list of subjects (schemes). Under subsection (4), the expenditure on the preparation of such schemes is to be borne as agreed to between the CDA and the local body or agency while under subsection (5), no planning or development shall be prepared by any person or by any local body or agency except with the concurrence of the CDA. The term “agency”, as defined in section 2(a) means any department or organization of the Federal or Provincial Government and Includes a corporation, or other autonomous or semiautonomous body set up by the Federal or Provincial Government. The term “local body” as defined in clause (1) ibid means the local body, the local council or the municipal body as defined in clauses (23) (24) and (27) of Article 3 of Basic Democracies Order, 1959 (P.O. 18 of 1959), or the Cantonment Board, having jurisdiction In the area concerned, and Includes an Improvement Trust within such area.
17. The word ‘regulation’ as defined In Advanced Law Lexicon referred to by the learned Amicus Curiae means a rule or order prescribed by superior for the management of some business or for the government or a company or society. It is a rule, ordinance or law by which conduct etc., is regulated. It Implies a rule for a general course of action, but does not apply to a case in which specific Instructions are to be given applicable to that case alone. According to Black’s Law Dictionary, the term ‘regulation’ means a rule or order having legal force issued by an administrative agency or a local government. In Khawaja Ahmad Hassan (supra), it was held as under: –
“25. It must be kept in view that “when the legislature confers power on Government to frame rules It is expected that such powers will be used only bona fide, in a responsible spirit and in the true Interest of the public and in furtherance of the object for the attainment of which such powers were conferred”. (Land Realization Co. Ltd. v Postmaster- General (1950) 66 TLR (Pt. 1) 985, 991, per Romer, J. (1950) Ch. 435. It is to be noted that rule-making authority which falls within the ambit of subordinate legislation as conferred upon the Government by virtue of section 191 of the Ordinance is neither unlimited nor unbridled and the limitations as mentioned in section 191 of the Ordinance must be adhered to In letter and spirit.
29. It is a well-recognized principle of interpretation of statutes that if the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or Inconsistent with such provisions then those provisions must be regarded as ultra vires of the statute and cannot be given effect to. (Barisal Cooperative Central Bank v. Benoy Bhusan AIR 1934 Cal.537; Municipal Corporation v. Saw Willie, AIR 1942 Rang 70, 74)”.
30. In the case of statutory rules the Court can always examine the question as to whether the same are Inconsistent with the statute under which they are made. In this regard we are fortified by the dictum laid down in Hazrat Syed Shah Mustarshid Ali Al-Quadari v. Commissioner of Wakfs AIR 1954 Cal. 436.
31. A rule-making body cannot frame rules in conflict with or derogating from the substantive provisions of the law or statute, under which the rules are framed. No doubt that the rules-making authority has been conferred upon the Government but “a rule, which the rule-making authority has power to make will normally be declared invalid only on the following, grounds: –
(1) Bad faith, that is to say, that powers
entrusted for one purpose are deliberately used
with the design of achieving another, Itself
unauthorized or actually forbidden;
(2) that it shows on its face a misconstruction
of the enabling Act or a fallure to comply with
the conditions prescribed under the Act for the
exercise of the powers; and
(3) that it is not capable of being related to
any of the purposes mentioned In the Act.
(Shankar Lal Laxmi Narayan Rathi v. Authority
under Minimum Wages Act, 1979 MPLJ 15 (DB).
Rules cannot go beyond the scope of the Act M.P. Kumaraswami Raja AIR 1955- Mad. 326 nor can they, by themselves, enlarge the scope of statutory provisions. K. Mathuvadivelu v. RT Officer, AIR 1956 Mad. 143. They cannot also militate against the provision under which they were made. (Kashi Prasad Saksena ro. State of U. P. AIR 1967 All. 173.
32. There is no cavil with the proposition that “the power of rule making is an incidental power that must follow and not run parallel to the present Act. These are meant to deal with details and can neither be a substitute for the fundamentals of the Act nor can add to them. PLD 1975 Azad J&K 81 = PLJ 1975 Azad J&K 89. There are two main checks in this country on the power of the Legislature to delegate, these being its good sense and the principle that It should not cross the line beyond which delegation amounts to abdication and self-effacement. The only requirement of law in such situations is to insist that the subordinate body charged with the duty of making rules must strictly confine itself within the sphere of Its authority for the exercise of Its subordinate legislative power and in each case It Is the duty of the Courts In appropriate proceedings to be satisfied that the rules and regulations so made are:–
(a) by the authority mentioned in the Act, and
(b) that they are within the scope of the power delegated
therein. (PLD 1966 Lah. 287).
“36. It is a well-recognized principle of Interpretation of statutes that if the rules framed under the statutes, or bye-laws framed under the rules, are in excess of the provisions of the statute or are in contravention of or Inconsistent with such provisions then these provisions must be regarded as ultra vires of the statute and cannot be given effect to. (Barisal Cooperative Central Bank v. Benoy Bhusan, AIR 1934 Ca1.537, 540).”
In Nur Ahmad’s case (supra), it was held that reading the rule in the above manner would be tantamount to enlarging Its scope by depriving the aggrieved party of the right of being heard which he has. The Basic Democracies Order does not deprive him of that right.
To be Continued…
