The rule-making Authority therefore, cannot clothe Itself with power which the Statute itself does not give. In Mian Ziauddin’s case (supra), It was held that the rules framed under the Ordinance could not go beyond and over-reach the Ordinance itself. In Ummatullah’s case (supra), it was held that Strong presumption as to constitutionality, legislative competence, legality, reasonableness and intra vires attached to a statute is also attached with full force to subordinate legislative instruments as well, such presumption though refutable, onerous burden is cast on person challenging validity or vires of legislative instrument, on any count. In order to strike down a subordinate legislative instrument, challenger has to show that any of the disqualification exist namely (a) it impinges upon fundamental rights guaranteed under the Constitution (b) it is in conflict with any Constitutional provision (c) it is beyond the legislative competence of the delegatee making it, and or (d) it is violative or beyond the scope of the parent or enabling statute. (see KBCA v Hashwani Sales and Services Ltd. PLD 1993 SC 210 @ 228 C, Maharashtra State Board of Secondary Education and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth AIR 1984 SC 1543). It was further held that when the parent law l.e. Sindh Bulldings Control Ordinance 1979 does not provide for matter relating to change in land use classification, or conversion of one category of land Into another It cannot through delegated legislative Instrument confer, bestow or delegate any power and duties on ‘Concerned Authorities”, which powers and performance of duty are not within its own domain or scope of authority. It is settled principle of law that what cannot be done directly cannot be done or allowed to be done Indirectly. It is also trite principle of law; what is not possessed can neither be conferred nor delegated. In Kerala Samsthana Chethu’s case (supra), it was held that the power of the Government was to make rules only for the purpose of carrying out the purposes of the Act and not dehors the same. In other words, rules cannot be framed In matters that are not contemplated under the Act. Reference in the above case was made to Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group [2006 (3) SCALE 1], wherein It was held that a policy decision, as is well known, should not be lightly Interfered with but it is difficult to accept the submissions made on behalf of the learned counsel appearing on behalf of the Appellants that the courts cannot exercise their power of judicial review at all. By reason of any legislation whether enacted by the legislature or by way of subordinate legislation, the State gives effect to Its legislative policy. Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart from being intra vires the Constitution should not also be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and In consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith. In the case of Vikramaditya Pandey. V. Industrial Tribunal, Lucknow [(2001) 2 SCC 423] the Indian Supreme Court has held that the provisions of the regulations in question to the extent of their inconsistency with any of the provisions of the Industrial Disputes Act, 1947, U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962, Workmen Compensation Act, 1923 and any other Labour Laws for the time being in force, if applicable to any cooperative society or class of cooperative societies shall be deemed to be Inoperative. By plain reading of the said Regulation it is clear that in case of inconsistency between the Regulations and the provisions of the Industrial Disputes Act, 1947, the State Act, the Workmen Compensation Act, 1923 and any other labour laws for the time being in force, if applicable to any cooperative society or class of cooperative societies to that extent Regulations shall be deemed to be Inoperative. In other words, the inconsistent provisions contained in the Regulations shall be inoperative, not the provisions of the other statutes mentioned in the Regulation.
18. From an examination of the above case law it is clear that a rulemaking body cannot frame rules in conflict with, or in derogation of, the substantive provisions of the law or statute, under which the rules are framed. Rules canthot go beyond the scope of the Act. Thus, we are Inclined to hold that no rule can be made which is Inconsistent with the parent statute, whereas, no regulation can be made Inconsistent with the parent statute or the rules made thereunder and the provisions of these rules or regulations, as the case may be, to the extent of their Inconsistency with the parent statute or the rules shall be inoperative.
19. The thrust of the arguments on the Issue whether the CDA was authorized to enter into JVA with a private entity for preparation of a scheme in terms of section 12 of the Ordinance was that it was allowed to do so in terms of the provision of regulation 4(1)A(iv) of the Regulation, which provides that the development of land in the zones shall be subject to the following conditions: –
A. Un-acquired Sectoral Areas: In these areas of Zone-1,
(i) land shall be acquired under a phased programme and developed by the Authority in accordance with the land use pattern spelled out In the Master plan;
(ii) no sale/ purchase of land which entails change in land use shall be allowed;
(iii) no construction of houses or buildings shall be allowed. However, repair of old houses and expansion of existing houses may be allowed by the Authority to the native residents subject to the conditions that the site is located within the main body of the village. The covered area of such construction shall not exceed 1000 Square feet including expansion and such permission shall not in any way Impede the right of the Authority to acquire the property whenever needed; and
(iv) no private scheme of any kind whatsoever shall be allowed, except in sector E-11. Schemes In E- 11 will be regulated according to the provisions applicable to schemes in Zone 2.
Above clause (iv) is couched in negative terms, Inasmuch as it provides that no private scheme of any kind whatsoever shall be allowed in Zone-1. However, as an exception, a private scheme is allowed to be launched in Sector E-11, but the same will be regulated by the provisions applicable to schemes in Zone-2. It may be noted that the said provision is not in consonance with the mandate and scope of section 12 of the Ordinance, which lays down that all schemes pursuant to the master plan and the master programme are to be prepared by a local body or agency.
To be Continued…
