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ADMINISTRATIVE LAW

STATE OF KARNATAKA VERSUS H. GANESH KAMATH AND Ors.

Submitted by

Bodhiratan Barthe (03) (Appellant)

Semester – V

MAHARASHTRA NATIONAL LAW UNIVERSITY, AURANGABAD

OCTOBER, 2019

Under the guidance of

Mrs. Neha Tripathi

Faculty in charge

Administrative Law
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Abstract

The Constitution of Indian empowers Legislature to make laws for the country. One of the significant
legislative functions is to determine a legislative policy and to frame it as a rule of conduct. Obviously such
powers cannot be conferred on other institutions. But keeping in mind various multifarious activities of a
welfare State, it is not possible for the legislature to perform all the functions. In such situation, the
delegated legislation comes into the picture. Delegated Legislature is one of the essential elements of
administration whereby the executive has to perform certain legislative functions. However, one must not
forget the risk associated with the process of delegation. Very often, an overburdened Legislature may
unduly exceed the limits of delegation. It may not lay down any policy; may declare any of its policy as
vague and may set down any guidelines for the executive thereby conferring wide discretion to the
executive to change or modify any policy framed by it without reserving for itself any control
over subordinate legislation. Therefore, even though Legislature can delegate some of its functions, it must
not lose its control completely over such functions.

In the realm of legal theory, delegated legislation is one of the most debatable issues because of its various
implications. Indian democracy is said to rest on the acclaimed four pillars and these are the legislature, the
executive, the judiciary, and the press. These pillars are empowered by the constitution not to interfere in
the matters of others. As per the Constitution, the legislative has legislative powers and the Executive has
the power to execute the laws. Similarly, the Judiciary has the power to resolve dispute and to met out
justice. But we have to keep in mind that there are multifarious functions that have to be performed by the
Legislature in welfare states and it is not an easy task for the legislature to look after every matter.

In this paper the author has emphasized upon the principle delegated legislation and its limitations as
evolved in the case of State Of Karnataka versus H.Ganesh Kamath and how this principle is used time and
again to circumscribe the Delegated legislation
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Table of contents

LIST OF ABBREVIATIONS……………………………………………………………….………..4

INDEX OF AUTHORITIES…………………………………………………………………………..5

I. CASES REFERRED (INDIAN)………………………………………………………..……….5

II. CASES REFERRED (FOREIGN)……………………………………………………………….5

III. WEB REFERENCES …………………………………………………………..……………......5

INTRODUCTION……………………………………………………………………………………….6

FACTS OF THE CASE…………………………………………………………………………………..7

ISSUES RAISED……………………………………………………………………………..…………..8

ARGUMENTS ADVANCED ………………………………………………………………….……….9-

10

JUDGMENT………………………………………………………………………………………………11

ANALYSIS ……………………………………………………………………………………...……..12-13

DEVELOPMENT OF LAW……………………………………………………………………..……14-15

CONCLUSION………………………………………………………………………………….………...16
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List of abbreviations

& And

AIR All India Reporter

All ER All England Reporter

Art. Article

Auth Authority

DB Division Bench

Del Delhi High Court

e.g. Example Gradient

etc. et cetera

Govt. Government

H.C. High Court

ICESCR International covenant on

economic social and cultural rights

i.e. that is

L.P.A. Letters Patent Appeal

No. Number

Ref. Referred

S.B. Single Bench

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

U.S. United States

WP Writ Petition
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Index of authorities

Articles ref. (Constitution of India)

Art. 312 (All India Services)

Art. 226 (Power of High Courts to issue certain writs)

Art. 309 (Recruitment and conditions of service of persons serving the Union or a State)

Act ref. (Indian)

Motor vehicle act (1988)

Cases referred (Indian)

D. S. Gerewal v. State of Punjab, [1959] AIR 512,

sikkim v. Surendra Sharma, [1994] AIR 2342,

Queen v Burah, (1878) ILR 3 Cal 64

Patna University v. Amita Tiwari, [1997] AIR 3456 SC

Delhi Transport Undertaking v. B.R.I. Hajelay, [1972] AIR 2452,

Kunj Bihari Lal Butail v. State of HP, [2000] (1) SCR 1054
Petroleum and Natural Gas Regulatory Board vs. Indraprastha Gas Ltd. and Ors, [2015] AIR
2978 SC

Cases referred (foreign cases)

Kruse v. Johnson, [1898] 1 2 QB 91

Panama Refining Co. v. Rayans, 293 U.S. 388 (1935)

Web references
www.scconline.co.in (SCC online)
www.manupatrafast.co.in (Manupatra)
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Introduction
In the light of judgement given by the honourable supreme court in case of State of Karnataka and Ors. vs.
H. Ganesh Kamath and Ors. It is discussed that The Constitution of Indian empowers Legislature to make
laws for the country. One of the significant legislative functions is to determine a legislative policy and to
frame it as a rule of conduct. Obviously such powers cannot be conferred on other institutions. But keeping
in mind various multifarious activities of a welfare State, it is not possible for the legislature to perform all
the functions. In such situation, the delegated legislation comes into the picture. Delegated Legislature is
one of the essential elements of administration whereby the executive has to perform certain legislative
functions. However, one must not forget the risk associated with the process of delegation. Very often, an
overburdened Legislature may unduly exceed the limits of delegation. It may not lay down any policy; may
declare any of its policy as vague and may set down any guidelines for the executive thereby conferring
wide discretion to the executive to change or modify any policy framed by it without reserving for itself
any control over subordinate legislation. Therefore, even though Legislature can delegate some of its
functions, it must not lose its control completely over such functions.
Delegated legislation can be used to cover a situation that Parliament had not anticipated at the time it
enacted the piece of legislation, which makes it flexible and very useful to law-making. Delegated
legislation is therefore able to meet the changing needs of society and also situations which Parliament had
not anticipated when they enacted the Act of Parliament. Delegation of Powers under the Indian
Constitution
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Facts of the case

The Respondent number one had obtained a learner's licence for driving heavy motor vehicles under the
said Rules and had obtained training in Crown Motor Driving School, Bangalore, which was an institution
recognised by the Government of Karnataka under Rule 30 of the said Rules. He also held a licence to
impart training in driving heavy motor vehicles. After completion of his training he obtained a certificate
from the said driving school and applied on July 22, 1976 through it for a licence to drive heavy motor
vehicles. The Respondent number two had applied on July 20, 1976 for a learner's licence to drive heavy
motor vehicles. The Respondent number three and four were both running schools for imparting training in
driving heavy motor vehicles and each held a licence to impart training in driving heavy motor vehicles
and had trained several persons. After successful completion of their training each of them had applied for
a licence for driving heavy motor vehicles. All the aforesaid applications were rejected by the Licensing
Authority on the ground that the Respondents did not satisfy the requirements of the impugned Sub-rule
(2) of Rule 5. The respondents thereupon approached the Karnataka High Court under Article 226 of the
Constitution of India by filing separate writ petitions. The High Court struck down the said Sub-rule (2) of
Rule 5 on the ground that it was repugnant to the provisions of Section 7 of the Act and allowed the said
four writ petitions. The Appellants, who are the State of Karnataka and the concerned Regional Transport
Officers, have filed these appeals by special leave against the said judgment and order.
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Issue raised
 Weather the rule made by state legislature is under its power?
In the said case it shows that the state of Karnataka is exercising its power as a delegated legislation and
according to article 312 of the indian constitution the delegated legislation has a power to make laws.
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Arguments Advance
The Constitution of Indian empowers Legislature to make laws for the country. One of the significant
legislative functions is to determine a legislative policy and to frame it as a rule of conduct. Obviously such
powers cannot be conferred on other institutions. But keeping in mind various multifarious activities of a
welfare State, it is not possible for the legislature to perform all the functions. In such situation, the
delegated legislation comes into the picture. Delegated Legislature is one of the essential elements of
administration whereby the executive has to perform certain legislative functions
The process of delegated legislation enables the Government to make a law without having to wait for a
new Act of Parliament to be passed. Further, delegated legislation empowers the authority to modify or
alter sanctions under a given statute or make technical changes relating to law. Delegated legislation plays
a very important role in the process of making of law as there is more delegated legislation each year than
there are Acts of Parliament. In addition, delegated legislation has the same legal standing as the Act of
Parliament from which it was created.
The Constitution of India gives powers to the Legislature to delegate its functions to other authorities, to
frame the policies to carry out the laws made by it. In the case of D. S. Gerewal v. State of Punjab 1, the
Supreme Court held that Article 312 of the Constitution of India deals with the powers of delegated
legislation. Justice K.N. Wanchoo observed “There is nothing in the words of Article 312 which takes
away the usual power of delegation, which ordinarily resides in the legislature. In the case of state of
sikkim v. Surendra Sharma2 The judge held that the termination of the employees solely on the ground that
he is not local is impermissible under Article 14 and 16 of the Indian Constitution. It was held that all rules
and legislations created under the power which is granted under sub-clause (k) of the Article 371F
constituted subordinate legislation. This article was added to the Constitution through the 36th
Constitutional Amendment.
In the case of Queen v Burah3 nature and extent of Legislature power and the feasibility of its delegation
was considered by the Privy Council. The Privy Council, in this case, held that Councils of Governor-
General was supreme Legislature and has ample number of powers and who are entitled to transfer certain

1
D. S. Gerewal v. State of Punjab, [1959] AIR 512,
2
 Sikkim v. Surendra Sharma, [1994] AIR 2342,
3
 Queen v Burah, (1878) ILR 3 Cal 64
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powers to provincial executors. At the time of passing of New Delhi Act of 1912, the Privy Council
accepted the transfer of Legislature power to the Executive. 
In the case of Kruse v. Johnson4 Lord Russell CJ, giving the courts leading judgment, held the by-law
became valid on the ground that it becomes no longer unreasonable, due to the fact that it does not have a
discriminatory impact on the population.
The words "Parliament may by law provide" in Article 312 should not be read to mean that there is no
scope for delegation in law made under Article 312…." In the England, the parliament being supreme can
delegated any amount of powers because there is no restriction. On the other hand in America, like India,
the Congress does not possess uncontrolled and unlimited powers of delegation. In Panama Refining Co.
v. Rayans5, the supreme court of the United States had held that the Congress can delegate legislative
powers to the Executive subject to the condition that it lays down the policies and establishes standards
while leaving to the administrative authorities the making of subordinate rules within the prescribed limits
In Patna University v. Amita Tiwari6, the relevant statute enabled the chancellor to issue the directions to
universities "in the administrative and academic interest."
Furthermore from the above case and the facts stated it clearly shows that the constitutional validity of the
delegated legislation the rule made by the state of Karnataka under the Karnataka motor vehicle rules 1976
is a rule made by the delegated legislation of motor vehicle act 1939 therefore the rule made by the state
legislature is under its power.

Judgement
4
Kruse v. Johnson, [1898] 1 2 QB 91
5
Panama Refining Co. v. Rayans, 293 U.S. 388 (1935
6
Patna University v. Amita Tiwari, [1997]AIR 3456 SC
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Making of a rule by virtue of the power conferred under the Act is a subordinate legislation. The rule can
be challenged on the ground that it takes away or abridges the rights conferred in Part III of the
Constitution or that it offends any other provision of the Constitution. The rule may also be challenged, on
the ground that it is beyond the power conferred on the delegate by the Act or that it is re- to some
provision of the Act and is, therefore, ultra vires. Chapter II of the Motor Vehicles Act deals with licensing
of drivers of motor vehicles, Section. 4 prescribes that no person under the age of 18 years shall drive a
motor vehicle in any Public place and subject to the provisions of S. 14, no person under the age of 20
years shall drive a trans-port vehicle in any Public place. Section 2 defines 'heavy motor vehicle', 'light
motor vehicle' and 'medium motor vehicle'. Under S. 7 (1) a Person who is not disqualified under S. 4 for
driving a motor vehicle and who is not for the time being disqualified for holding or obtaining a driving
licence may apply to the licensing authority for the issue to him of a driving licence. Section 7 (3) provides
that where the application is for a driving licence to drive as a paid employee or to drive a transport
vehicle, or where in any other case the licensing authority for reasons to be stated in writing requires, the
application has to be accompanied by a medical certificate in Form C signed by a registered medical
practitioner. Section 7 (4) requires copies of photographs being sent along with the application in regard to
these two categories. Section 7 (6) provides that no driving licence shall be issued to any applicant unless
he passes to the satisfaction of the licensing authority the test of competence to drive specified in the Third
Schedule. Section 7 (7) is as follows: "(7) The test of competence to drive shall be carried out in a vehicle
of the type to which the application refers, and, for the purposes of Part-I of the test (a) a person who
passes the test in driving a heavy motor vehicle shall be deemed also to have passed the test in driving any
medium motor vehicle or light motor vehicle; (b) a person who passes the test in driving a medium motor
vehicle shall be deemed also to have passed the test in driving any light motor vehicle." Section 7 (8)
provides that when an application has been duly made to the appropriate licensing authority and the
applicant has satisfied such authority of his Physical fitness and of his competence to drive and has paid to
the authority a fee of eleven rupees, the licensing authority shall grant the applicant a driving licence unless
the applicant is disqualified under S. 4 for driving a motor vehicle or is for the time being disqualified for
holding or obtaining a driving licence. Rule 5(2) did was to prescribe additional qualifications which an
applicant for a licence to drive a heavy motor vehicle was to possess before he became entitled to the grant
of such licence, and that by virtue of this specific power conferred upon the State Governments by Section
21(2)(aa), the State of Karnataka could validly prescribe the qualifications laid down in Rule 5(2) On
behalf of the Respondents it was submitted that rule-making power could not be so conferred as to enable
the rule-making authority to travel beyond the scope of the parent Act or to frame a rule which is repugnant
or contrary to an express provision of the parent Act.
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Analysis
The underlying object of parliamentary control is to keep watch over the rule-making: -
authorities and also to provide an opportunity to criticize them if there is abuse of power on their part.
Parliament has control in that the enabling or parent Act passed by Parliament sets out the framework or
parameters within which delegated legislation is made. In India, the question of control on rule-making
power engaged the attention of the Parliament.Every delegate is subject to the authority and control of the
principal and the exercise of delegated power can always be directed, corrected or cancelled by the
principal. Hence parliamentary control over delegated legislation should be a living continuity as a
constitutional remedy. The fact is that due to the broad delegation of legislative powers and the generalised
standard of control also being broad, judicial control has shrunk, raising the desirability and the necessity
of parliamentary control.
Legislation by the executive branch or a statutory authority or local or other body under the authority of the
competent legislature is called “Delegated legislation”. It permits the bodies beneath parliament to pass
their own legislation. It is legislation made by a person or body other than Parliament. Parliament, through
an Act of Parliament, can permit another person or body to make legislation. An Act of Parliament creates
the framework of a particular law and tends only to contain an outline of the purpose of the Act. By
Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide
more detail to an Act of Parliament. Parliament thereby, through primary legislation (i.e. an Act of
Parliament), permit others to make law and rules through delegated legislation. The legislation created by
delegated legislation must be made in accordance with the purposes laid down in the Act. The function of
delegated legislation is it allows the Government to amend a law without having to wait for a new Act of
Parliament to be passed. Further, delegated legislation can be used to make technical changes to the law,
such as altering sanctions under a given statute. Also, by way of an example, a Local Authority have power
given to them under certain statutes to allow them to make delegated legislation and to make law which
suits their area. Delegated legislation provides a very important role in the making of law as there is more
delegated legislation enacted each year than there are Acts of Parliament. In addition, delegated legislation
has the same legal standing as the Act of Parliament from which it was created
The validity of the subordinate or delegated legislation can be challenged on the ground that it is ultra vires
the Enabling or Parent Act. If the subordinate or delegated legislation made by the delegate is in excess of
the power conferred by the Enabling or Parent Act or is in conflict with the provisions of the Enabling or
Parent Act or is made without following the procedure required by the Enabling or Parent Act to be
followed by the delegate, the delegated or subordinate legislation will be invalid on the ground that it Is
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ultra vires the Enabling or Parent Act. The validity of the exercise of power is tested on the basis of the
Prussians as it stands currently and not on the basis of that it was before.
When the delegated legislation is found to be directly or indirectly in conflict with the provisions of the
Enabling Act or Parent Act, it is held to be ultra vires the Enabling or Parent Act. In Delhi Transport
Undertaking v. B.R.I. Hajelay 7 , a rule was declared Invalid on the ground that it was in conflict with the
provisions of the Enabling or Parent Act. According to Section 92 of the Delhi Corporation Act. 1957, all
persons drawing salary less than 350 rupees per month shall be appointed only by general Manager of the
Delhi Transport Undertaking. According to Section 95 of the Act, no person can be dismissed by any
authority subordinate to the authority who has appointed him. The rules made under the Act empowered
the General Manager to delegate all his powers to the Assistant General Manager. The rule was held to be
In conflict with the aforesaid provision of the Parent Act. The effect of the rule was that a person appointed
by the General Manager could be dismissed by the Assistant General Manager. i.e. a person could be
dismissed by an authority subordinate to the authority who had appointed him while Section 95 of the Act
provided that no person can be dismissed by an authority subordinate to the appointing authority. Thus, the
rule was in conflict with Section 95 of the Act. Consequently the rule was held to be invalid.

Development Of Law
7
Delhi Transport Undertaking v. B.R.I. Hajelay, [1972] AIR 2452
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The main areas that were dealt and were evolved in this case is the 1) conferment of rule-making power by
an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the
enabling Act or which is inconsistent therewith or repugnant thereto. And 2) That it is in conflict with the
prescribed procedure of the enabling Act. Administrative rule making can also be declared invalid if it is in
direct conflict with any provision of the enabling Act. Conflict with the enabling Act may also arise with
reference to the objects and purpose of the enabling Act. Because the delegation is often effected by the
use of wide formulae, it does not mean that it will authorize the making of regulations which do not relate
to the objects and purpose of the enabling Act. What are the objects and purposes will involve an
assessment by the Court not only of the provisions of the Act but also of the inferences which can be
drawn from those provisions and from the surrounding circumstances in which the Act operates. The
Supreme Court in case of
 Kunj Bihari Lal  Butail v. State of HP8 held that administrative authority cannot bring within the net of
the rules what has been excluded by the Act itself. In this case the HP Ceiling on Land Holdings Act, had
delegated to the State
Government the power to make rules for the purpose “for carrying out the purpose of this Act”. The Act by
section 5 had exempted 'Tea Estates and land subservient thereto' from
The operation of the Act. However rules framed by the State Government had put embargo on the transfer
of the land subservient to tea estates. Thus the rules were held ultra vires the enabling Act being
inconsistent and repugnant thereto. 
It is in conflict with the prescribed procedure of the enabling Act.
If the procedure that has been laid by the enabling Act, to be followed by the administrative authorities is
violated the rules may be declared void. The Court looks to the spirit rather than the letter of law.
 
The judgement of state of Karnataka V H. Ganesh Kamath is again reffered in the case of Petroleum and
Natural Gas Regulatory Board vs. Indraprastha Gas Ltd. and Ors 9. And held that the power to fix the
tariff has not been given to the Board. In view of that the Board cannot frame a Regulation which will
cover the area pertaining to determination of network tariff for city or local gas distribution network and
compression charge for CNG. As the entire Regulation centres around the said subject, the said Regulation
deserves to be declared ultra vires,

8
Kunj Bihari Lal Butail v. State of HP, [2000] (1) SCR 1054
9
Petroleum and Natural Gas Regulatory Board vs. Indraprastha Gas Ltd. and Ors, [2015] AIR 2978 SC
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Conclusion
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To draw conclusion it can be said that 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. The validity of the subordinate or delegated legislation may be challenged before
the Courts on this ground. It is a mechanism to curb down the exploitation of power by the administrative
authority as we all know that “power corrupts and absolute power corrupts absolutely”. However in this
field there is lack of development and there is no substantial change in the concept all though the changing
nature of the current legislative method has widen the horizon of the power of the authority by giving them
power to act according to the need of the time, even sometimes travelling beyond the restrictions. The
courts do not look merely at the express words of the enabling provision in the parent statute, but go
beyond them and also imply certain restrictions therein. The idea is that the courts do not want the
executive to do certain things by using its general rule making power without being specifically authorized
to do so by law. This approach to some extent helps in preservation of individual liberty, strengthening of
judicial control over delegated legislation.