State of J&K vs. Lakhwinder Kumar & Ors, Criminal Appeal No. 624 of 2013 in
SLP (Crl.) No. 5910 of 2012 [Decided on 25.04.2013]
The
Hon’ble Court observed:
“One of the most common mode adopted by the legislature
conferring rule making power is first to provide in general terms i.e., for
carrying into effect the provisions of the Act, and then to say that in
particular, and without prejudice to the generality of the foregoing power,
rules may provide for number of enumerated matters.”
“In our opinion, when the power is conferred
in general and thereafter in respect of enumerated matters, as in the present
case, the particularlisation in respect of specified subject is construed as
merely illustrative and does not limit the scope of general power.”
The
Court illustrated: Section 141 of the Act (read: Border Security Force Act,
1968), (with which in the appeal was concerned), confers on the Central
Government the power to make rules is of such a nature. It reads as follows:
“141. Power to make rules.-(1) The Central Government may, by
notification, make rules for the purpose of carrying into effect the provisions
of this Act.
(2) In particular and without prejudice to the generality of
the foregoing power, such rules may provide for,-
(a) the constitution, governance, command and discipline of
the Force;
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In
sub-section (1) it is stated, “Central Government may make rules for the
purpose of carrying into effect the provisions of the Act”. The sub-section (2)
starts with the words “In particular and without prejudice to the generality of
the foregoing power, such rules may provide for..” and than the section become
enumerative.
The
Court also noted following case law:
“Rohtak
& Hissar Districts Electric Supply Co. Ltd. v. State of U.P.”, AIR 1966 SC
1471, in which it has been held as follows:
“……….Section 15(1)
confers wide powers on the appropriate Government to make rules to carry out
the purposes of the Act; and Section 15(2) specifies some of the matters
enumerated by clauses (a) to (e), in respect of which rules may be framed. It
is well-settled that the enumeration of the particular matters by sub-section
(2) will not control or limit the width of the powers conferred on the appropriate
Government by sub-section (1) of Section 15; and so, if it appears that the
item added by the appropriate Government has relation to conditions of
employment, its addition cannot be challenged as being invalid in law……..”
On
the fact of the case the Court held:
“It is pointed out that the Rules made to
give effect to the provisions of the Act has to be consistent with it and if a
rule goes beyond what the Act contemplates or is in conflict thereof, the rule
must yield to the Act. It is emphasized that Section 80 of the Act confers
discretion on the Officer within whose Command the accused person is serving
the choice between Criminal Court and Security Force Court without any rider,
whereas Rule 41 of the Rules specifies grounds for exercise of discretion.”
“Accordingly, it is submitted that this rule
must yield to Section 80 of the Act. We do not find any substance in this
submission.”