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PETITIONER: RAJNARAIN SINGH

       Vs.

RESPONDENT: THE CHAIRMAN, PATNA ADMINISTRATIONCOMMITTEE, PATNA, AND ANOT

DATE OF JUDGMENT: 21/05/1954

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA

CITATION:  1954 AIR  569            1955 SCR  290  CITATOR INFO :  R          1957 SC 414  (13)  F          1958 SC 682  (11)  R          1958 SC 909  (7)  R          1959 SC 512  (7)  RF         1961 SC   4  (15)  RF         1963 SC 771  (32)  R          1965 SC1107  (22,81)  MV         1966 SC 693  (28)  RF         1967 SC1048  (20)  R          1967 SC1480  (3,5,9,19)  RF         1968 SC1232  (14,53,81)  RF         1973 SC1461  (227,450,566)  R          1976 SC 714  (29,38,57)  RF         1979 SC1475  (18)  RF         1980 SC 650  (5)  R          1982 SC1126  (9)  RF         1990 SC 560  (13,14,20,21)

ACT: Delegation  of Legislative power-Limit and extent  of-Essen- tial   Legislative   feature  -Change   of   policy   -Patna Administration  Act, 1915, (Bihar and Orissa Act I of  1915) as  amended  by Patna Administration (Amendment)  Act,  1928 (Bihar and Orissa Act IV of 1928) s. 3 (1)(f)-Whether  intra vires-Bihar  and Orissa Municipal Act, 1922-Notification  by Governor-Beyond s. 3(1)(f)  Ultra vires.

HEADNOTE: An  executive  authority can be authorised by a  statute  to modify  either  existing  or  future laws  but  not  in  any essential  feature.  Exactly what constitutes  an  essential feature  cannot  be enunciated in general terms  but  it  is clear  that modification cannot include a change of  policy. Essential legislative function consists in the determination of  the legislative policy and its formulation as a  binding rule  of  conduct.  Modifications which are  authorised  are limited  to local adjustments or changes of minor  character and do not mean or involve any change of policy or change in the Act.

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Section  3(1)(f)  of the Patna Administration Act of  19  15 (Bihar  and  Orissa  Act  I of 1915)  as  amended  by  Patna Administration (Amendment) Act of 1928 (Bihar and Orissa Act IV  of 1928) is intra vires because any section or  sections of the Bihar Municipal Act of 1922 can be picked and applied to  Patna  (whether with or without  modification)  provided that does not eftct any essential change in the Act or alter its policy and the words "restriction" and " modification" are used in the restricted sense. The  notification  dated  23rd April,  1951,  by  which  the Governor of Bihar picked s. 104 out of the Bihar and Orissa Municipal  Act of 1922, modified it and extended it  in  its modified form to the Patna Administration and Patna  Village areas  is ultra vires as it effects a radical change in  the policy  of  the Act and thus travels  beyond  the  authority conferred by s. 3(1)(f). In  re  The Delhi Laws Act, 1912, etc. ([1951]  S.C.R.  747) applied.

JUDGMENT: CiviL APPFLLATE JURISDIOTION: Civil Appeal No. 202 of 1953. Appeal  under  article 132(1) of the Constitution  of  India from the Judgment and Order dated the 22nd day of  December, 1952,   of  the  High  Court  of  Judicature  at  Patna   in Miscellaneous Judicial Case No. 78 of 1952. Basant  Chandra Ghose (P.  K. Chatterjee, with him) for  the appellant. Mahabir  Prasad, Advocate-General of Bihar, (S.   P.  Varma, with him) for respondent No. 2. 1954.  May 21.  The Judgment of the Court was delivered by Bose  J.-The  High  Court of Patna  granted  the  petitioner before  it  leave  to appeal under  article  132(1)  of  the Constitution  on the ground that a substantial  question  of law  relating to the interpretation of the Constitution  was involved. The   appellant  is  the  Secretary  of  the  Rate   Payers’ Association  at  Patna.   He and the other  members  of  his Association  reside in an area which was originally  outside the  municipal  limits  of  Patna  and  was  not  liable  to municipal  and cognate taxation.  On 18th April, 1951,  this area was brought within municipal limits and was  subjected. to   municipal  taxation.   This  was  accomplished   by   a notification of that date.  By reason of this the  appellant and  the others whom he represents were called upon  to  pay taxes for the period 1 st April, 195 1, to 31st March, 1952. The  notifications were issued under sections 3(1)(f) and  5 of  the Patna Administration Act of 1915 (Bihar  and  Orissa Act I of 1915).  The appellant claims that the notifications are  delegated  legislation and so are bad  and  prays  that sections  3(1)(f)  and  5 of the Act  which  permitted  this delegation be condemned as ultra vires. In  order  to  appreciate  the  points  raised  it  will  be necessary  to go back to the year 1911 when the Province  of Bihar  and Orissa was formed.  It will also be necessary  to bear  in  mind  that we have to  deal  with  three  separate sections in the area which is now called Patna.  In order to avoid  confusion  we  will  call  them  Patna  City,   Patna Administration  and Patna Village respectively.  It must  be understood  that  this is a  purely  arbitrary  nomenclature adopted  by  us for the purposes of this judgment  and  that they are neither so called nor so recognised anywhere  else. Their  boundaries  have  not  been static  but  it  will  be necessary to keep them notionally distinct.

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292 When  the  new  Province  was  formed  in  1911  the  Bengal Municipal  Act of 1884 applied to the whole of it.  At  that time  one of the three portions of Patna with which  we  are concerned  (namely, the portion we have called  Patna  City) was  under  a  Municipality (the  Patna  City  Municipality) created  under the Bengal Act.  This Municipality  continued to function in the Patna City area after the creation of the new  Province.   The  other two sections were  not  born  as distinct  entities till later and the areas which  they  now cover were not under any municipal or cognate jurisdiction. The new Province required a new capital and Patna was chosen for  the  purpose.  Quite naturally the City  expanded  and, following  the general pattern in India, a new area grew  up (distinct  from the old City) which housed the  headquarters of  the  new  Government.   Before  long,  it  was   thought expedient  to bring this area under  municipal  jurisdiction and  give it a municipality of its own rather than place  it under   the   old  city  municipality.    Accordingly,   the Legislature of the new State passed the Patna Administration Act of 1915 (Bihar and Orissa Act I of 1915) to enable  this to be done.  This Act came into force on,5th January,  1916. The petitioner impugns sections 3(1)(f) and 5 of the Act and the  notifications  made under it on the  ground  that  they permit delegated legislation which has hurt him and  wrongly rendered him liable to municipal taxation. Broadly speaking, the Act empowered the Local Government  to create   a   new  municipality  (later  called   the   Patna Administration  Committee) for this new area which,  in  our arbitrary    classification,    we   have    called    Patna Administration.   The  Act called this new area  "Patna  and defined  its  boundaries in the schedule to the  Act.   This area did not include either the section which we have called Patna City or the one we have dubbed Patna Village. Now the Legislature of this new State did not draw up a  new Municipal Act nor did it apply the existing Bengal Municipal Act  of  1884,  which  was at that  time  in  force  in  the Province,  to  this new area which the Act  of  1915  called "Patna" and which we have called 293 Patna  Administration.   Instead,  by  section  3(1)(f)   it empowered the Local Government to "extend  to Patna the provisions of any section of the  said Act"  (the Bengal Municipal Act of 1884) "  subject to  such restrictions  and modifications as the Local Government  may think fit." This is a part of the impugned portion.  Section 5, which is also impugned, runs- "The  Local Government may at any time cancel or modify  any order under section 3." Section 6(b) is also relevant, though it is not  challenged. It says, omitting unnecessary words, that- "The Local Government may .................................. ; (b)  include within Patna any local area in the vicinity  of the same and defined in the notification." We refer to this here because the area we have called  Patna Village  *as later brought under the jurisdiction of  a  new municipality  called the Patna Administration  Committee  by action taken under this section. Armed  with the powers which this Act conferred,  the  Local Government  created the new Municipality and called  it  the Patna   Administration  Committee  and,  by  a   series   of notifications  with  which we are not concern  ed,  extended certain sections of the Bengal Municipal Act of ’1884 to the

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area which we have called Patna Administration. The  result  of all this was that up to 1922  there  was  in existence the Patna City Municipality with jurisdiction over the area we have called patna City : the whole of the Bengal Municipal  Act of 1884 applied there.  Side by side was  the new  municipalty called the Patna  Administration  Committee holding  way  over the new area which we have  called  patna Administration.   The Bengal Municipal Act did not apply  to this area of its own force; only certain sections which  the Local  Government had picked out under powers  conferred  by the  Patna  Administration Act Of 1915 were  applied  there. The  third  area, which we have called  Patna  Village,  and which  is the area which really concerns us, was  free  from municipal control. 294 In  1922  the Provincial Legislature enacted the  Bihar  and ’Orissa  Municipal  Act, 1922 (Bihar and Orissa Act  VII  of 1922).  It repealed the whole of the Bengal Municipal Act-of 1884 and substituted the new Act of 1922 for it.  This  only affected  the Patna City area and did not affect  the  Patna Administration area because the Bengal Act was never applied to that area as such.  The portions of it which were  picked out to have force there were applied by reason of the  Patna Administra  tion Act, 1915, and that constituted,  in  truth and  in fact, independent legislation.  The result was  that the new Act of 1922 came into effect in the Patna City  area and  the  sections of the Bengal Act which were  applied  by reason of the Patna Administration Act continued in force in the  Patna  Administration  area.  The area  which  we  have called Patna Village was still unaffected. Understandably,   the   new  Province  preferred   its   own legislation  to that of Bengal.  But despite the passing  of the  Bihar  and  Orissa Municipal Act  in  1922,  the  Local Government,  acting  under  section 3(1) (f)  of  the  Patna Administration Act, 1915, could only extend sections of  the Bengal Act to the Patna Administration area and not sections of its own Act.  This was because of section 3(1) (a)  whose provisions we need not examine.  To set this right the Bihar and Orissa Legislature passed an amending Act in 1928 (Bihar and  Orissa Act IV of 1928) called the Patna  Administration (Amendment)  Act  of 1928.  But that only provided  for  the future.  So far as the present and the past were  concerned, section 4 of the amending Act provided- ,,  Any section of the Bengal Municipal Act, 1884,  extended to Patna under clause (f) of sub-section (1) of section 3 of the said Act " (that is, the Patna Administration Act, 1915) "  shall be deemed to continue to extend to Patna until  the extension of such section to Patna is expressly cancelled by notification." Three  years  later,  the Governor  cancelled  all  previous notifications extending sections of the Bengal Act of  1884, and  the  Bihar  and  Orissa  Act  of  1922,  to  the  Patna Administration area.  In their places he picked out  certain sections   of   the   Bihar  and   Orissa   Act   of   1922, modified;others, and extended the lot so selected and 295 modified to the Patna Administration area.  This was done by Notification  No. 4594 L. S. G. dated 25th April, 1931.   It gave  a  sort of fresh Municipal Code to this  area.   There were, however, significant differences between this and  the Act  of 1922; for example, sections 4, 5, 6, 84 and  104  of the Act of 1922 were omitted altogether. Nothing further happened, till 1951.  In the meanwhile,  the Constitution of India came into force on 26th January, 1950. We  refer to this because before the Constitution the  Local

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Government  was empowered to act under section 3(1) (f)  and section  6(b) of the Patna Administration Act, 1915.   After the  Constitution  these  powers  were  transferred  to  the Governor of Bihar. During this interval Patna was expanding and the area  which we  have  called Patna Village, originally  just  a  village area,  began  to  be  built  upon  It  adjoined  the   Patna Administration  area only a road separated the two.  It  was therefore  felt  that  this should  also  be  brought  under municipal   control.   But  instead  of  creating  a   third municipality  the  authorities thought it best to  place  it under   the   jurisdiction  of  the   Patna   Administration Committee.   Here again, instead of legislating direct  they fell back on the Patna Administration Act, 1915, as  amended in 1928.  On 18th April, 1951, a notification was  published in  the  Gazette by order of the Governor of Bihar.   It  is Notification  No.  MVP-45/50-3645 L.S.G. dated  11th  April, 1951.  It runs as follows: "  In  exercise  of the powers conferred by  clause  (b)  of section 6 of the Patna Administration Act,, 1915, (Bihar and Orissa  Act I of 1915), the Governor of Bihar is pleased  to "declare  that  the area defined below  is  included  within Patna........................ The  area  referred  to is the third of  the  areas  we  are considering,  namely the one we have called  Patna  Village. The  effect  of this was to bring Patna  Village  under  the municipal control of the ’Patna Administration Committee. Five  days later, the Governor of Bihar picked  section  104 out of the Bihar and Orissa Municipal Act of 296 1922,  modified it and extended it in its modified  form  to the Patna Administration and Patna Village areas.  This  was by Notification No. M/Al-201-51-406 L.S.G. dated 23rd April, 1951.  The modified version -ran as follows: "  104.  Assessment of taxes-When the  Patna  Administration Act,  1915, (B & 0 Act I of 1915), is first extended to  any place,  the first tax on holdings, latrines or water may  be levied  from  the beginning of the quarter next to  that  in which  the assessment of the tax has been  completed-in  the area to which the Act is extended."  The  High Court, purporting to apply In re The  Delhi  Laws Act,  1912(1)  held  that  the  impugned  sections  and  the notifications complained of are intra vires. We  are only concerned with the Patna Village ’area in  this case.   The  appellant and those he represents all  live  in that  area and are the ones who impugn the validity  of  the taxes  levied on them.  They  were brought  under  Municipal control  on 18th April, 1951.  The Bengal Municipal  Act  of 1884 was no longer one of the existing laws in the State  of Bihar on that date.  It was repealed in full in 1922 and was replaced  by  the Bihar, and Orissa Municipal Act  of  1922. The  selected sections of the Bengal Act of 1884  which  the Local  Government  had picked out and applied to  Patna  Ad- ministration were also repealed on 25th April, 1931, and  in their  place was substituted another set of sections  picked out by the Local Government from the Bihar and Orissa Act of 1922  and modified in places.  The facts accordingly  narrow down to this. In  1928  an executive authority (the  Local  Government  of Bihar and Orissa), subject to the legislative control of the Bihar   and  Orissa  Legislature,  was  empowered  by   that Legislature  (because of Act I of 1915 amended by Act IV  of 1928) to do the following things:- (1)to  cancel  or modify any existing Municipal  laws  inthe Patna Administration area

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(2)to extend to this area all or any of the sections of the- Bihar  and  Orissa Municipal Act of 1922 (I)  [1951]  S.C.R. 747. 297 subject  to  such  restrictions  and  modifications  as   it considered fit; (3)  to add to the Patna Administration area other areas not already under municipal control. This,  in short, is the effect of sections 3(1) (f),  5  and 6(b)  of the Patna Administration Act of 1915 as amended  in 1928.  Armed with this authority, the Local Government  (and later the Governor) exercised all three powers. On  25th  April,  1931, the Local  Government  repealed  the existing  law in the Patna Administration area,  namely  the sections  of the Bengal Act of 1884 which had  been  applied there from time to time.  In its place, it introduced a  new set  of  laws culled from the Bihar and Orissa Act  of  1922 with such restrictions and modifications as it thought  fit. Then  on 18th April, 1951, the Governor added Patna  Village to  the  Patna Administration area.  And  finally,  on  23rd April, 195 1, he added a modified, version of section 104 of the Bihar and Orissa Municipal Act of 1922 to the  Municipal laws in these two combined areas. The  first  question  is whether the  notification  of  26th April,  1931,  can be attacked by the  petitioner.   In  our Opinion,  it cannot.  As we have already pointed  out,  this notification  gave  a sort of fresh Municipal  Code  to  the Patna  Administration area.  But it did not affect the  area with which we are concerned namely, the Patna Village  area. It  was  limited to Patna  Administration.   The  petitioner therefore cannot challenge it because it does not affect him and  the question whether it is open to challenge  by  other persons  does not arise.  We are accordingly unable to  give him   the   declaration  which  he  seeks   regarding   that notification. We turn next to the notification of 23rd April, 1951.   This does affect him because it subjects him to taxation.  It was made under section 3(1) (f), therefore, it will be necessary to  examine (1) whether the notification travels beyond  the impugned portion of the Act and  (2) if not, whether section 3(1) (f) is itself ultra vires.  But we cannot do this until we examine the decision of this Court, in the Delhi Laws Act case(1). (1)  [1951] S.C.R. 747, 38 298 Because of the elaborate care with which every aspect of the problem  was examined in that case, the decision has  tended to  become diffuse, but if one concentrates on  the  matters actually decided and forgets for a moment the reasons given, a  plain  pattern emerges leaving only a  narrow  margin  of doubt for ,future dispute. The  Court  had before it the following problems.   In  each case,  the  Central Legislature had empowered  an  executive authority  under  its legislative control to apply,  at  its discretion,  laws  to  an  area which  was  also  under  the legislative sway of the Centre.  The variations occur in the type of laws which the executive authority was authorised to select  and in the modifications which it was  empowered  to make in them.  The variations were as follows: (1)  Where  the  executive authority was permitted,  at  its discretion, to -apply without modification (save  incidental changes  such as name and place), the whole of  any  Central Act  already  in existence in any part of  India  under  the legislative away of the Centre to the new area :

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This was upheld by a majority of six to one. (2)  Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances: This was also upheld, but this time by a majority of five to two. (3)  Where  the executive authority was permitted to  select future Central laws and apply them in a similar way: This was upheld by five to two. (4)  Where the authorisation was to select future Provincial laws and apply them as above: This was also upheld by five to two. (5)  Where  the authorisation was to repeal laws already  in force  in  the area and either substitute nothing  in  their places or substitute other laws, Central or Provincial, with or without modification:’ This  was  held to be ultra vires by a majority of  four  to three,                             299 (6)  Where  the  authorisation was to apply  existing  laws, either   Central  or  Provincial,  with   alterations   and’ modifications ; and (7)  Where the authorisation was to apply future laws  under the same conditions:  The  views of the various members of the Bench were not  as clear  cut  here as in the first five cases, so it  will  be necessary to analyse what each Judge said.) The  opinion  of Kania C.J. will be found at  pages  794797. Put  briefly  his view was that only Parliament  can  effect modifications in any " essential legislative function" viz., "the  determination  of  the  legislative  policy  and   its formulation  as a rule of conduct." For this reason  he  was prepared  to  uphold  what he called " conditional  "  or  " subsidiary  "  or  " ancillary " legislation,  but  not  the application by an executive authority of Provincial Acts  to which  the Central Legislature had not applied its  mind  at all  (page  801); and for the same reason  he  excluded  the application of all future legislation. The  present Chief Justice (Mahajan J. as he then was)  took an  ’even  stricter  view.  He  was  prepared  to  authorise delegation of ancillary or ministerial powers (pages 938 and 946) but except for that he said- "  Parliament  has  no  power  to  delegate  its   essential legislative functions to others, whether State  Legislatures or  execut  ive authorities, except,  of  course,  functions which really in their true nature are ministerial." As against this, three of the Judges were more liberal.  Das J.  was  of the opinion that so long as Parliament  did  not abdicate or efface itself and retained control in the  sense of retaining the right to recall or destroy or set right  or modify  anything  its delegate did, it could confer  on  the delegate  all  the  rights of legislation  which  it  itself possessed (page 1068).  Patanjali Sastri J. (as he then was) took  the same extreme view (pages 857, 858 and 870).   Fazl Ali J. did not go as far though he upheld all the Acts which were impugned in that case.  At page 830 he said that- 300 the   Legislature  must  normally  discharge   its   primary legislative  function  itself and not through  others,"  but that it may "  utilise  any  outside  agency  to  any  extent  it  finds necessary  for doing things which it is unable to do  itself or  finds it inconvenient to do.  In other words, it can  do everything which is ancillary to and necessary’ for the full and effective exercise of its power of legislation." He dealt with the power to modify at page 846 and said-

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"  The  power  of  introducing  necessary  restrictions  and modifications  is incidental to the power to apply or  adapt the law......... The modifications are to be made within the -framework  of the Act and they cannot be such as to  affect its  identity  or structure or the essential purpose  to  be served  by  it.  The power to modify  certainly  involves  a discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes." The  other two Judges took an intermediate view.   Mukherjea J.  said  that  essential legislative  functions  cannot  be delegated  and  at  pages 982 to 984 he  indicated  what  he meant: ,,The   essential  legislative  function  consists  in   the determination  or choosing of the legislative policy and  of formally  enacting  that  policy  into  a  binding  rule  of conduct," and at page 1000- "  With the merits of the legislative policy, the  Court  of law  has  no concern.  It is enough if it  is  defined  with sufficient  precision  and  definiteness so  as  to  furnish sufficient guidance to the Executive Officer who has got  to work it out.  If there is no vagueness or indefiniteness  in the  formulation of the policy, I do not think that a  Court of law has got any say in the matter." Dealing with the word modification he said at, page 1006- 301 The  word  I modification.......... does not,  ’my  opinion, mean  or  involve any change of policy but  is  confined  to alteration of such a character which keeps the policy of the Act intact and introduces such changes as are appropriate to local  conditions of which the executive Government is  made the Judge......... " At pages 1008 and 1009 he explained this further and limited the  modifications  to " local adjustments or changes  of  a minor character." Bose  J. contented him self at page 1121 by saying that  the delegation  cannot  extend to the "  altering  in  essential particulars  of laws which are already in force in the  area in question." But he added at page 1124- "  My answers are, however, subject to  this  qualification. The power to ’restrict and modify’ does not import the power to make essential changes.  It is confined to alterations of a  minor  character  such as are necessary to  make  an  Act intended for one area applicable to another and to bring  it into harmony with laws already in being’ in the State, or to delete portions which are meant solely for another area.  To alter  the essential character of an Act or to change it  in material  particulars is to legislate, and that, namely  the power  to legislate, all authorities are agreed,  cannot  be delegated by a Legislature which is not unfettered." In  our  opinion, the majority view was  that  an  executive authority  can  be authorised to modify either  existing  or future laws but not in any essential feature.  Exactly  what constitutes  an  essential feature cannot be  enunciated  in general  terms, and there was some divergence of view  about this  in  the former case, but this much is clear  from  the opinions  set  out  above: it cannot  include  a  change  of policy. Now  coming  back to the notification of 23rd  April,  1951. Its  vire8 was challenged on many grounds but it  is  enough for the purposes of this case to hold that the action of the Governor  in-subjecting the residents of the  Patna  Village area to municipal taxation without observing the formalities imposed  by  sections  4, 5 and 6 of the  Bihar  and  Orissa

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Municipal Act of 1922, cuts 302 across  one  of it essential features touching a  matter  of policy and so is bad. The Act of 1922 applied to the whole of Bihar and Orissa and one  of  its  essential features  is  that  no  municipality competent  to  tax shall be thrust upon a  locality  without giving its inhabitants a chance of being heard and of  being give n an opportunity to object.  Sections 4, 5 and 6 afford a statutory guarantee to that effect.  Therefore, the  Local Government  is under a statutory duty imposed by the Act  in mandatory  terms to listen to the objections and  take  them into  consideration  before  reaching a  decision.   In  our opinion, this is a matter of policy, a policy imposed by the Legislature and embodied in sections 4, 5 and 6 of the  Act. We  are  not able to brush this asideas  negligible  and  it cannot, in our opinion, be left to an executive authority to tear  up  this guarantee in disregard of  the  Legislature’s solemnly expressed mandate.  To do so would be to change the policy  of the law and that, the majority in the Delhi  Laws Act  case(1) say, cannot be done by a  delegated  authority. But  the notification cannot be ultra vires if it  does  not travel  beyond the powers conferred by a law which is  good. It  will  therefore  be necessary to examine  the  vires  of section  3(1)(f)   in  the  light  of  the  Delhi  Laws  Act decision. Now what exactly does section 3(1)(f ) authorise?  After its amendment  it  does  two  things:  first,  it  empowers  the delegated  authority to pick any section it chooses  out  of the Bihar and Orissa Municipal Act of 1922 and extend it  to "Patna";  and second, it empowers’the Local Government  (and later the Governor) to apply it with such "restrictions  and modifications" as it thinks fit. In  the Delhi Laws Act case(1), the following provision  was held to be good by a majority of four to three: "The  Provincial  Government  may......  extend  with   such restrictions  and modifications as it thinks  fit......  any enactment which is in force in any part of British India  at the date of such notificatior.". Mukherjea and Bose JJ., who swung the balance, held that not only could an entire enactment with (i)  [1951] S.C.R. 747- 303 modification be extended but also a part of one; and  indeed that was the actual decision in Burah’s case(1) on which the majority founded: (see Mukherjea J. at page 1000 and Bose J. at  pages 1106 and 1121).  But Mukherjea and Bose JJ.,  both placed a very restricted meaning on the words  "restriction" and  "modification"  and, as they swung the  balance,  their opinions  must  be  accepted as the decision  of  the  Court because their opinions embody the greatest common measure of agreement among the seven Judges. Now  the only difference between that case and this is  that whereas  in the former case the whole of an enactment, or  a part  of  it  could be extended, here, any  section  can  be picked out.  But to pick out a section is to apply a part of an Act, and to pick out a part is to effect a  modification, and as the previous decision holds that a part of an Act can be  extended, it follows that a section or sections  can  be picked  out  and applied, as in Burah’s case(1)  where  just that was done; also, for the same reason that the whole or a part  of an Act can be modified; it follows that  a  section can  also be modified.  But even as the modification of  the whole cannot be permitted to effect any essential change  in the  Act  or  an  alteration  in  its  policy,  so  also   a

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modification  of  a  part cannot be permitted  to’  do  that either.   If that were not so, the law, as laid down in  the previous  decision, could be evaded by picking out parts  of an Act only, with or without modification, in such a way  as to  effect  an essential change in the Act as a  whole.   It follows  that  when  a section of an  Act  is  selected  for application, whether it is modified or not, it must be  done so  as not to effect any change of policy, or any  essential change  in  the Act regarded as a whole.   Subject  to  that limitation we hold that section 3(1)(f) is intra vires, that is to say, we hold that any section or sections of the Bihar and  Orissa  Municipal  Act of 1922 can be  picked  out  and applied  to  "Patna"  provided  that  does  not  effect  any essential change in the Act or alter its policy. The  notification of 23rd April, 1951 does, in our  opinion, effect a radical change in the policy of the Act. (I)  5 I.A. 178. 304 There  fore, it travels beyond the authority which,  in  our judgment,  section  3(1)(f) confers and consequently  it  is ultra vires, It is not necessary to examine the vire8 of section 5 of the Act of 1915 which was also impugned because no action  taken under  it has hurt the appellant and so he  cannot  question its vires. The result is that the appeal succeeds.  We hold- (1)  that  section  3(1)(f) is intra vire8  provided  always that the words "restriction" and "modification" are used  in the restricted sense set out above; and (2)  that  the  notification of 23rd April, 1951,  is  ultra vires. The  question  about the vires of the notification  of  25th April, 1931, and of section 5 does not arise. The  respondents will pay the appellant’s costs here and  in the High Court.                       Appeal allowed. 305