Mrs. Hashi Mukherjee And Others vs The State Of West Bengal And Others
2022 Latest Caselaw 3111 Cal/2

                     In The High Court at Calcutta
                    Constitutional Writ Jurisdiction
                             Original Side

The Hon'ble Justice Sabyasachi Bhattacharyya


                           W.P.O. No. 451 of 2018
                   Mrs. Hashi Mukherjee and others
                                  Vs.
                  The State of West Bengal and others


     For the petitioners       :    Mr. Sagar Bandyopadhyay,
                                    Mr. Soumyen Datta,
                                    Mr. Tapan Sil,
                                    Mr. Abhishek Bhar

     For the respondent no.3 :      Mr. Indranil Roy,

Mr. Dipayan Choudhury, Mr. Suvrodal Choudhury

Hearing concluded on : 13.12.2022

Judgment on : 20.12.2022

The Court:

1. The petitioners are a section of members of a Housing Society. The

said Society was registered with effect from May 22, 2013 before the

Competent Authority under the West Bengal Apartment Ownership

Act, 1972 (for short, "the 1972 Act") on the application of a majority of

the members of the building. The writ petitioners were excluded from

the application and the accompanying declaration.

2. On December 30, 2015, several amendments took place in the 1972

Act. The amendments to some of the Sections, including Sections 2,

3, 10, 10A, 11 and 12 of the Act were given retrospective effect from

July 5, 1972 by the State Government. It is relevant to mention that

the amendment Act was published in the Kolkata Gazette on

December 7, 2015. Section 1(2) thereof empowered the State

Government to appoint such date from which the Amending Act shall

come into force. The State Government was also empowered to

provide different appointing dates for different provisions of the

Amending Act. The State Government, vide Notification dated

December 30, 2015, gave retrospective effect to the Sections

mentioned above from July 5, 1972, that is, the date of promulgation

of the parent Act.

3. The present writ petition has been filed against the Notification

No.13-HL/1M-11/2013, dated December 30, 2015 issued by the

Principle Secretary, Department of Housing, insofar as the same

relates to giving retrospective effect to the amended provisions of

Section 2 from July 5, 1972. It is argued that the said Notification is

in excess of authority and ultra-vires the West Bengal Apartment

Ownership (Amendment) Act, 2015 and the parent Act of 1972 as well

as the Constitution of India and should be struck down.

4. It is submitted that under Rule 3 of the West Bengal Apartment

Ownership Rules, 1974 (hereinafter referred to as "the 1974 Rules"),

all the owners or majority of the owners are required to submit

declaration before the competent authority.

5. The disparity of the said Rule with the provisions of Sections 2 and 10

of the 1972 Act was considered in a Judgment of a co-ordinate bench

of this Court reported at 2014 (2) CHN (Cal) 186 [Debdas Banerjee Vs.

State of West Bengal and others].

6. The learned Single Judge, in the said Judgment, struck down Rule 3,

as had been amended in July/August, 2003, with the rider that the

factual findings contained in the impugned order had not been

examined. It was found that since unworkability of the provisions of

the Act would seem to continue as a result of striking down of Rule 3,

the learned Single Judge expressed hope and trust that adequate

measures shall be taken immediately to undo the virtual mischief that

Section 2 of the Act has presented.

7. The ground for striking down Rule 3 was the disparity between the

same and Section 2 of the parent Act.

8. It is contended that in view of the multifarious activities of a welfare

State, it cannot presumably be possible to work out all the details to

suit the varying aspects of a complex situation. It must necessarily

delegate the working out of details to the Executive or any other

agency, but there is a danger inherent in such a process of delegation

and an over-burdened Legislature or one controlled by a powerful

Executive may unduly overstep the limits of delegation. It may not lay

down any policy at all : it may declare its policy in vague and general

terms; it may not set down any standard for the guidance of the

Executive; it may confer an arbitrary power on the Executive to

change or modify the policy laid down by it without saving for itself

any control over subordinate legislation. The self-effacement of

legislative power in favour of another agency, either in whole or in

part, is beyond the permissible limits of delegation. In support of

such proposition, learned counsel for the petitioners cites Avinder

Singh and others Vs. State of Punjab and others, reported at (1979) 1

SCC 137.

9. Next placing reliance on A.N. Parasuraman and Others Vs. State of

Tamil Nadu [(1989) 4 SCC 683], learned counsel submits that it is well-

established that determination of legislative policy and formulation of

rule of conduct are essential legislative functions which cannot be

delegated. What is permissible is to leave to the delegated authority

the task of implementing the object of the Act after the legislature lays

down adequate guidelines for the exercise of power.

10. Learned counsel for the petitioners next relies on State of Rajasthan

and others Vs. Basant Nahata [(2005) 12 SCC 77], in support of the

proposition that the delegation of legislative power cannot be wide,

uncanalised or unguided. The legislature, while delegating such

power, is required to lay down the criteria or standard so as to enable

the delegatee to act within the framework of the statute. The principle

on which the power of the legislature is to be exercised is required to

be disclosed. It is also trite that essential legislative functions cannot

be delegated.

11. Learned counsel next cites Director General of Foreign Trade and

Another Vs. Kanak Exports and Another, reported at (2016) 2 SCC 226.

In the said judgment, the Supreme Court observed that a delegated or

subordinate legislation can only by prospective and not retrospective,

unless the rule-making authority has been vested with power under a

statute to make rules with retrospective effect.

12. Learned counsel for the petitioners also relies on Jayam and Company

Vs. Assistant Commissioner and Anr., reported at (2016) 15 SCC 125.

The Supreme Court held in the said judgment that, when it comes to

fiscal legislation, the Legislature has power to make the provision

retrospectively. By placing reliance on R.C. Tobacco (P) Ltd. Vs. Union

of India [(2005) 7 SCC 725], the Supreme Court reiterated the broad

legal principles while testing a retrospective statute as follows:

"(i) A law cannot be held to be unreasonable merely because it operates retrospectively;

(ii) The unreasonability must lie in some other additional factors;

(iii) The retrospective operation of a fiscal statute would have to be found to be unduly oppressive and confiscatory before it can be held to be unreasonable as to violate constitutional norms;

(iv) Where taxing statute is plainly discriminatory or provides to procedural machinery for assessment and levy of tax or that is confiscatory, courts will be justified in striking down the impugned statute as unconstitutional;

(v) The other factors being period of retrospectivity and degree of unforeseen or unforeseeable financial burden imposed for the past period;

(vi) Length of time is not by itself decisive to affect retrospectivity."

13. Learned counsel appearing for the petitioners then cites Rojer Mathew

Vs. South Indian Bank Limited [(2020) 6 SCC 1] for the proposition that

law-making power may not be granted to an administrative body to be

exercised under the guise of administrative discretion.

14. It is argued by the petitioners that Section 1(2) of the Amending Act of

2015 cannot be said to have authorised the Executive of the State

Government to give retrospective operation to the Amending Act, as

such power was not vested with the State Government under the said

Amending Act. Moreover, as laid down in the judgments cited by the

petitioners, giving retrospective operation to a substantive legislation

is a legislative action and the State Government had no authority

either under the Constitution or under the provisions of the parent

Act of 1972 or the Amending Act of 2015 to give retrospective

operation to the said Amending Act.

15. In view of the retrospective operation, where any issue was finalised

on the basis of the provisions of the parent Act of 1972 as prevalent

prior to December 30, 2015 would be rendered nugatory or completely

altered, the petitioners contend.

16. Learned counsel for the respondent no.3 refutes the petitioners'

arguments and argues that the prayers made in the writ petition are a

camouflage to cover up the real purpose behind the present litigation

to have the registration of respondent no. 3 under the 1972 Act

cancelled and to harass the respondent no. 3 and its members.

17. It is submitted that the Debdas Banerjee (supra) judgment

necessitated the amendment of 2015. It is evident therefrom that the

Amendment Act of 2015 is a validation law. The petitioners, it is

contended, are not aggrieved by the amendment/substitution of

Section 2 of the 1972 Act but with the retrospective effect given to the

amendment of Section 2 from July 5, 1972.

18. Learned counsel for the respondent no. 3 next contends that the

thrust of the petitioners' arguments is only on the point that essential

legislation cannot be delegated to the executive. However, since the

delegation of power itself under Section 1 (2) of the Amending Act,

2015 has not been challenged, the exercise of such power by way of

the impugned Notification dated December 30, 2015 cannot be

challenged in the absence of any arbitrariness and/or illegality in

exercising such delegated power.

19. Learned counsel cites Jayam and Company Vs. Assistant

Commissioner and Another, reported at (2016) 15 SCC 125 for the

proposition that retrospective legislation would be admissible in cases

of validation laws.

20. The next judgment cited on behalf of the respondent no. 3 is Atar

Singh Vs. State, reported at AIR 1964 All 339, where a learned Single

Judge of the Allahabad High Court held that in laying down whether

the delegation of the power to fix date of commencement of the Act

amounts to a delegated legislative authority, the Courts of law must

take a liberal view and should not ordinarily declare such a provision

to be ultra vires.

21. Learned counsel appearing for the respondent no. 3 next places

reliance on Madras Bar Association Vs. Union of India and Another

(2021 SCC OnLine SC 463) to show the limits to amend the provisions

of an Act retrospectively and in support of the proposition that the test

of judging the validity of the amending and validating enactment is

whether the legislature enacting the statute has competence over the

subject-matter; whether by validation, the legislature has removed the

defect which the Court had found in the previous law; and whether

the validating law is consistent with the provisions of Part III of the

Constitution.

22. Upon hearing learned counsel for the parties, one of the features

which stands out in the present case is that the vires of Section 1(2) of

the Amending Act, which empowers the State Government to decide

and notify the date of commencement of the said Amending Act, has

not been challenged. What has been challenged is the retrospectivity

lent to the said Act by virtue of the impugned Notification.

23. The source of inspiration for the amendment can be traced to the

Single Bench judgment of Debdas Banerjee (supra). The learned Single

Judge upheld the challenge to Rule 3 of the 1974 Rules and struck

down the same on the ground that it was ultra vires Section 2. In

paragraph 42 of the said judgment, it was held as follows:

"Since unworkability of the provisions of the Act would seem to continue

as a result of striking down of Rule 3, I hope and trust that adequate

measures shall be taken immediately to undo the virtual mischief that

section 2 of the Act has presented."

24. The learned Single Judge formed the opinion in paragraph 37 of

Debdas Banerjee (supra) that it was unfortunate that when Section 2

was amended twice, the legislature forgot to insert the words "majority

of" at the appropriate place. Since it was not done, the Court held that

it could not harmonise the statutory provisions by unduly stretching

the words used by the legislature to fill in gaps or omissions in the

provisions of an Act.

25. The West Bengal Apartment Ownership (Amendment) Act, 2015 was

enacted with effect from December 17, 2015 vide Notification dated

December 7, 2015. In Section 1 (2) thereof, it was stipulated that the

Act shall and shall be deemed to come into force on such date as the

State Government may, by notification in the Official Gazette, appoint

and different dates may be appointed for different provisions of the

Act.

26. Taking a cue from Debdas Banerjee (supra), Section 2 of the

Amending Act inserted the phrase "or majority of the owners" in

Section 2 of the parent Act of 1972.

27. The Notification assailed herein was published in the Official Gazette

on December 30, 2015 and appointed July 5, 1972 as the date on and

from which Section 2 of the Amending Act shall be deemed to come

into force.

28. Since the amendment was evidently introduced, inter alia, to rectify

the "unworkability" of the parent Act due to the majority owners being

left out, as pointed out in Debdas Banerjee (supra), it can very well be

termed as a 'validating' or 'clarificatory' statute, at least to such extent

as it introduced the concept of majority of owners. Therefore, following

the ratio of the Supreme Court, as laid down in paragraph no. 15 of

Jayam & Co. (supra), the retrospective effect given to Section 2 of the

Amending Act would be admissible, since it is in the nature of a

validation law, that is, where the law as initially passed was held to be

inoperative by the court.

29. Again, one of the tests laid down by the Supreme Court in paragraph

41 of Madras Bar Association (supra), of judging the validity of an

amending and validating enactment, is that by validation, whether the

legislature has removed the defect which the Court had found in the

previous law. The said test is passed by the 2015 Amending Act with

flying colours.

30. In any event, the Amending Act itself has not been challenged by the

writ petitioners. Section 2 thereof amends Section 2 of the parent Act

and Section 1 (2) thereof confers power on the State Government to

appoint the date when the Act or its various provisions shall, or shall

be deemed to, come into force. The language used in Section 1 (2),

conspicuously, is "This Act shall and shall be deemed to come into

force as the State Government may, by notification in the Official

Gazette, appoint...". Therefore the Legislature has, in no uncertain

terms, conferred power on the Executive, functioning as the State

Government, to give effect to the Act, or its different provisions

separately, either prospectively (as indicated in "shall come into force")

or retrospectively (as in "shall be deemed to come into force").

31. A learned Single Judge of the Allahabad High Court, in Atar Singh

(supra), held as long back in the year 1963 that in laying down

whether the delegation of the power to fix the date of commencement

of the Act amounts to a delegated legislative authority, the Courts of

law must take a liberal view and should not ordinarily declare such a

provision to be ultra vires.

32. The petitioners cited Avinder Singh (supra). In it, the Supreme Court

criticizes excessive delegation of essential legislative power. However,

it is also observed that in view of the multifarious activities of a

welfare State it cannot presumably work out all the details to suit the

varying aspects of a complex situation. It must necessarily delegate

the working out of details to the executive or any other agency.

However, legislative policy ought not to be delegated. In fact, in the

said case, the Supreme Court went on to hold that none of the canons

governing delegation of legislative power had been breached.

33. Again, in A.N. Parasuraman (supra), it was reiterated by the Supreme

Court that determination of legislative policy and formulation of rule

of conduct are essential legislative functions which cannot be

delegated.

34. Such observation, however, came with the rider that what is

permissible is to leave to the delegated authority the task of

implementing the object of the Act after the legislature lays down

adequate guidelines for the exercise of power. In the present case, the

object and purpose of the introduction of the concept of "or the

majority of members" was clearly to render the provisions of the

parent Act workable, as indicated in Debdas Banerjee (supra). Thus,

the retrospectivity attributed to such amendment by the impugned

Notification was in tune with and to give effect to the object of the

Amending Act itself.

35. The Supreme Court, in Roger Mathew (supra) also reiterated the

principle that law-making power may not be granted to an

administrative body to be exercised under the guise of administrative

discretion. In delegating powers with respect to the administration of

statutes, the legislature must ordinarily prescribe a policy, standard,

or rule for their guidance and must not vest them with an arbitrary

and uncontrolled discretion with regard thereto.

36. The petitioners also rely on State of Rajasthan (supra), where it was

held that the necessity of the legislature's delegating its powers in

favour of the executive is a part of legislative function and a

constituent element of the legislative power as a whole under Article

245 of the Constitution. What was deprecated in the judgment was

wide, uncanalised or unguided delegation. The principle on which the

power of the legislature is to be exercised is required to be disclosed

and essential legislative functions cannot be delegated, it was

observed. In the instant case, none of such vitiating factors is found.

In fact, the delegation to assign the date of commencement, by

Section 1 (2) of the Amending Act, has not been challenged at all, nor

is there any cogent ground to so assail.

37. If we examine the context of Kanak Exports Case (supra), also cited by

the petitioners, paragraph 113 thereof indicates that the provision-in-

question therein conferred powers upon the Central Government to

"amend" the policy which had been framed. The same was clearly a

piece of "delegated legislation" in its true sense. However, in the case

at hand, the legislature itself declared the policy and tenor of the

amendment in clear terms and unambiguous language. What was left

to the executive was the power to appoint dates on which the

Amending Act would commence or would be "deemed to" commence.

Power was specifically given also to appoint different dates for different

provisions of the Amending Act.

38. Construing the present impugned Notification in proper perspective,

the same was prompted by the Single Bench decision in Debdas

Banerjee (supra) and sought to rectify the "unworkability" of the

parent Statute, at least insofar as the introduction of the concept of

"or majority of the owners" is concerned. The retrospectivity attributed

to Section 2 was, therefore, intended by the legislature in passing the

Amending Act. The impugned Notification only breathed life into such

legislative intent and was clearly designed to fulfill the object of the

Amending Act.

39. Here, the legislature clearly enumerated the specific amendment

sought to be introduced and only left the date of appointment to the

executive. Thus, no power to amend legislative policy was delegated in

the first place. Even if we assume that the retrospectivity touches

legislative policy, it was exercised by the executive in such a manner

so as to serve the clarificatory and validating object of the Amending

Act. Thus, the ratio laid down in Kanak Exports Case (supra) does not

aid the cause of the present petitioners in any manner.

40. Another germane aspect is required to be dealt with here. By virtue of

the impugned retrospectivity of the Notification, the executive did not

take away any vested right of anybody. The left-out minority of owners

of the concerned property could not be construed to have, in the first

place, any negative right under the parent Act to resist full

implementation of the parent Act. Rather, the converse is true,

inasmuch as the retrospective element in the impugned Notification

conferred a right in favour of majority of owners which is in

consonance with, and will further the purpose of, the Amending Act

and the parent Act.

41. In fact, it should be kept in mind that sub-section (1) of Section 10A of

the parent Act, after the 2015 amendment, retained the right with the

minority number of owners to submit the requisite declaration, if they

so choose, "subsequently", thereby going that extra mile to ensure

that the option of the minority owners to participate or not to

participate in the registration of declaration is not curtailed in any

manner.

42. In any event, the declared object and purpose of the parent Act of

1972 was, inter alia, to provide for the ownership of an individual

apartment and to make such apartment heritable and transferable

property. To bring as many apartment owners within the purview of

the Act as possible would only further, and not hamper, such

objective. The amendment to Section 2 enabled properties where a

majority of the owners wanted to come within the fold of the parent

Act, which is highly probable, to be so brought. Its retrospectivity was

only to ensure that the purpose of the Act would not be frustrated by

allowing too many cooks to spoil the broth and restricting the choice

of choosing applicability of the Act only to the two extremities - sole

owners and all owners - but leaving out concurring majority owners,

which has the highest probability of occurrence in modern

apartments.

43. The impugned Notification only served such purpose and, thus,

cannot be faulted in any manner.

44. In view of the above reasons, the challenge to such Notification is not

tenable in the eye of law and must fail.

45. Accordingly, W.P.O. No.451 of 2018 is dismissed on contest, thereby

upholding the impugned Notification No. 13-HL/1M-11/2013 dated

December 30, 2015, whereby July 5, 1972 was appointed as the date

on and from which Section 2 of the Amending Act shall be deemed to

come into force and December 17, 2015 was appointed as the date on

and from which the other provisions of the Amending Act shall come

into force.

46. There will be no order as to costs.

47. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )