Kunj Behari Lal Butail & Ors. Vs. State of H.P. & Ors.
EmailAppeal: Civil Appeal No. 1424 of 2000
(Arising out of S.L.P.(C) No.18880 of 1998)
(From the Judgment and Order dated 13.8.98 of the Himachal Pra-desh High Court in C.W.P. No. 1009 of 1992)
(Arising out of S.L.P.(C) No.18880 of 1998)
(From the Judgment and Order dated 13.8.98 of the Himachal Pra-desh High Court in C.W.P. No. 1009 of 1992)
Petitioner: Kunj Behari Lal Butail & Ors.
Respondent: State of H.P. & Ors.
Apeal: Civil Appeal No. 1424 of 2000
(Arising out of S.L.P.(C) No.18880 of 1998)
(From the Judgment and Order dated 13.8.98 of the Himachal Pra-desh High Court in C.W.P. No. 1009 of 1992)
(Arising out of S.L.P.(C) No.18880 of 1998)
(From the Judgment and Order dated 13.8.98 of the Himachal Pra-desh High Court in C.W.P. No. 1009 of 1992)
Judges: S. SAGHIR AHMAD, R.C. LAHOTI & Y.K.SABHARWAL, JJ.
Date of Judgment: Feb 18, 2000
Appearances:
Mr. Anil B. Diwan, Mr. V.C. Mahajan, Senior Advocates, Mrs. Indra Sawhney, Mr. Virender Sood, Mr. S. Mohanty, Mr. B.B. Sawhney, Advocates with them for the appellants.
Mr. Naresh K. Sharma, Advocate for the Respondents.
Head Note:
CONSTITUTION
Articles 14, 16 – Himachal Pradesh Ceiling on Land Holdings Rules, 1973 – Rule 3, proviso (as inserted vide notification dated 4.4.86) and circular dated 21.8.90 of Registrar, Kangra District – Tea estate including “such other area necessary for purposes subservient to tea plantation” excluded from the provi-sions of Land Ceiling Act – Proviso and circular restraining transfer of such subservient land – Validity. Held that the proviso and circular are ultra vires of Section 5 of H.P. Act of 1972 and accordingly struck down. Case law discussed.
Articles 14, 16 – Himachal Pradesh Ceiling on Land Holdings Rules, 1973 – Rule 3, proviso (as inserted vide notification dated 4.4.86) and circular dated 21.8.90 of Registrar, Kangra District – Tea estate including “such other area necessary for purposes subservient to tea plantation” excluded from the provi-sions of Land Ceiling Act – Proviso and circular restraining transfer of such subservient land – Validity. Held that the proviso and circular are ultra vires of Section 5 of H.P. Act of 1972 and accordingly struck down. Case law discussed.
Held:
The amendment made vide notifica-tion dated 4.4.86 places an embargo on right to transfer such subservient land though exempted from the operation of the Act. Clearly the impugned proviso is beyond the rule making power of the State Government as conferred by the Act. It is well settled that the Legislature cannot delegate its essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up the details. A delegated power to legis-late by making rules ‘for carrying out the purposes of the Act’ is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself. (Paras 8, 14)
Cases Reffered:
1. Supreme Court Employees Welfare Association v. Union of India JT 1989 (3) SC 188
2. General Officer Commanding-in-Chief & Anr. v. Dr. Subhash Chandra Yadav & Anr. JT 1988 (1) SC 458
3. Maharao Sahib Shri Bhim Singhji v. Union of India & Ors. – (1981) 1 SCC 166
4. Sant Saran Lal & Anr. v. Parsuram Sahu & Ors., AIR 1966 SC 1852, para 19
2. General Officer Commanding-in-Chief & Anr. v. Dr. Subhash Chandra Yadav & Anr. JT 1988 (1) SC 458
3. Maharao Sahib Shri Bhim Singhji v. Union of India & Ors. – (1981) 1 SCC 166
4. Sant Saran Lal & Anr. v. Parsuram Sahu & Ors., AIR 1966 SC 1852, para 19
JUDGEMENT:
R.C. LAHOTI, J.
1. Leave granted.
2. To consolidate and amend the laws relating to ceiling on land holdings in the State of Himachal Pradesh, the Legislative Assem-bly of Himachal Pradesh enacted Himachal Pradesh Ceiling on Land Holdings Act, 1972 (hereinafter the Act, for short). Sub-section (1) of Section 26 of the Act provides that the State Government may, by notification, make rules for carrying out the purposes of this Act. Sub-sections (2) and (3) thereof provide for previous publication of the rules and the rule being laid on the floor of the State Legislature as soon as may be after it is made. In exercise of the power so conferred the State Government has framed the Himachal Pradesh Ceiling on Land Holdings Rules, 1973 (hereinafter ‘the Rules’, for short). Rule 3 thereof reads as under :-
3. Areas to be treated as subservient to tea plantation. -(1) The following areas shall be treated as subservient to tea plan-tation :-
(a) areas on which there is programme for expansion of tea plantation during next ten years which will be determined by the State Government;
(b) areas covered by forests and forest growth of which the fuel wood, timber is required for the manufacture of the tea and main-tenance of tea estate;
(c) low-lying lands which generally serve as water reservoirs for the use of tea plantation; and
(d) land on which tea factories, labour quarters, playgrounds and other ancillary buildings are situated.
Provided that no land, treated as subservient to tea plantation under this sub-rule and exempted from the operation of the Act under Section 51(g) thereof, shall be transferred by the landown-er in any manner, without the permission of the State Government.
(2) The owner of the tea estate will submit return in Form C-1 to the Collector showing the areas he intends to include for the purpose of clause (a) of sub-rule (1) within one month from the date on which these rules will come into force. The Collector on receipt of this return shall make such inquiry as he deems fit and thereafter send his recommendations to the State Government for orders which will be final.”
3. The proviso appended to sub-rule (1) and placed just below clause (d) of sub-rule (1) was not there in the text of the Rules as originally framed. It has been inserted by amendment through Notification No.10-5/73-II Rev.B dated 4.4.86. This amendment was published in Gazette Extraordinary dated 26.4.86.
4. On 21.8.90 the Registrar, Kangra District at Dharmshala issued a general circular to all Tehsildars- cum-Sub-Registrars (of deeds) in Kangra District containing the following direction :-
“It has been brought to the notice of the Government that the land owners are selling land exempted from the provisions of the H.P. Ceiling on Land Holdings Act, 1972. Therefore you are directed not to register the sale deeds in respect of such lands, and take action in such cases under the provisions of the Land Ceiling Act, 1972 and intimate of the same to the Deputy Commis-sioner also so that proper guidance is given by him.”
5. It is the constitutional validity of amendment made in the Rules by notification dated 4.4.86 (published on 26.4.86) and the circular order dated 21.8.90 which has been put in issue by a writ petition filed by the appellants. The cause of action arose to the appellants because their effort at alienating a piece of land subservient to tea plantation was sought to be put into jeopardy.
6. Shri Anil Divan, the learned senior counsel for the appellants has raised two pleas: (i) that the Act is not applicable to land subservient to tea estates and therefore a provision made in the Rules framed in exercise of powers delegated by the Act but proposing to make provision as regards a subject excluded from within the purview of the Act is ultra vires the provisions of the Act; (ii) that the prohibition imposed by the amended rule suffers from the vice of arbitrariness and unreasonableness inasmuch as though an alienation of land forming part of tea plantation itself is not prohibited either by the Act or the rules but alienation of land subservient to tea plantation is sought to be restrained.
7. Section 4 of the Act defines the permissible area which a landowner, a tenant or a mortgagee with possession or a person holding partly one or other of the abovesaid status may hold. Section 6 places a ceiling on the entitlement to hold any land beyond what is permitted by the Act. Section 7 empowers the State Government to determine the surplus area of the land held by any one ignoring the transfer after the appointed day of a land held in excess of the permissible area except bona fide transfers. Section 5 of the Act provides for Exemptions and enacts that the provisions of this Act shall not apply amongst others to “tea estates”. Section 5 reads as under :
5. Exemptions. – The provisions of this Act shall not apply to-
(a) lands owned by the State Government or the Central Govern-ment;
(b) lands belonging to registered Co- operative Farming Socie-ties;
Provided that the share of a member of such society, together with his other land, if any, does not exceed the permissible area;
(c) lands belonging to Land Mortgage Banks, the State and Cen-tral Co-operative Banks and any other Banks as defined in the Explanation – not reproduced.
(d) lands belonging to or vested in local authorities;
(e) lands belonging to Himachal Pradesh Agriculture University;
(f) lands owned by the Bhudan Yagna Board established under the law in force in the State of Himachal Pradesh and
(g) tea estates.
8. Shri Anil Divan, the learned senior counsel for the appell-ants submitted that lands covered by seven categories as defined in clauses (a) to (g) of Section 5 have been excluded from appli-cability of the provisions of the Act. Section 26 delegates to the State Government the legislative power of making rules which delegation is circumscribed by the expression – ‘for carrying out the purposes of this Act’. In exercise of such delegated power to legislate, the State Government cannot bring within the net of the rules what has been excluded by the Act itself. We find merit in the submission so made. Tea estates are excluded from the provisions of the Act by Section 5. ‘Tea estate’ is defined in the interpretation clause of the Act to mean an area under tea plantation and includes within the definition ‘such other area necessary for purposes subservient to a tea plantation as may be prescribed’. Rule 3 defines what areas shall be treated as subservient to tea plantation. The amendment made vide notifica-tion dated 4.4.86 places an embargo on right to transfer such subservient land though exempted from the operation of the Act. Clearly the impugned proviso is beyond the rule making power of the State Government as conferred by the Act. It is well settled that the Legislature cannot delegate its essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up the details. (See: Princi-ples of Statutory Interpretation, Justice G.P. Singh, Seventh Edition 1999, at pp. 689-690)
9. In Supreme Court Employees Welfare Association v. Union of India JT 1989 (3) SC 188 = (AIR 1990 SC 334), this Court has held :-
“A delegated legislation or a subordinate legislation must con-firm exactly to the power granted.” (para 62)
“Rules whether made under the Constitution or a statute, must be intra vires the parent law under which power has been delegated.”(para 98)
10. In General Officer Commanding-in-Chief & Anr. v. Dr. Subhash Chandra Yadav & Anr. JT 1988 (1) SC 458 = AIR 1988 SC 876, it has been held :-
“Before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void.”
11. In the abovesaid case, the rule making provision of the Cantonment Act conferred power on the Central Government to make rules in the matter of “the tenure of office, salaries and allow-ances, provident funds, pensions, gratuities, leave of absence and other conditions of service of servants of boards.” In exercise of this power, the Central Government framed rules to make provision for transfer of the employees of the Boards. It was held that the rule was in excess of the rule making power given to the Central Government.
12. The Government while framing rules under the Bihar Money Lenders Act, 1938 fixed the upper limit for the loans which the money lenders could lend though the Act nowhere provided for the fixing of such upper limit. In Sant Saran Lal v. Parsu Ram Saha, AIR 1966 SC 1852 it was held that the rule making power of the Government does not extend to the fixing of such a limit as it was not empowered by the Act.
13. It is very common for the legislature to provide for a gener-al rule making power to carry out the purpose of the Act. When such a power is given, it may be permissible to find out the object of the enactment and then see if the rules framed satisfy the test of having been so framed as to fall within the scope of such general power confirmed. If the rule making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent act. (See: Sant Saran Lal & Anr. v. Parsuram Sahu & Ors., AIR 1966 SC 1852, para 19). From the provisions of the Act we cannot spell out any legislative intent delegating expressly, or by necessary implication, the power to enact any prohibition on transfer of land. We are also in agreement with the submission of Shri Anil Divan that by placing complete prohibi-tion on transfer of land subservient to tea estates no purpose sought to be achieved by the Act is advanced and so also such prohibition cannot be sustained. Land forming part of tea estate including land subservient to tea plantation have been placed beyond the ken of the Act. Such land is not to be taken in ac-count either for calculating area of surplus land or for calcu-lating area of land which a person may retain as falling within ceiling limit. We fail to understand how a restriction on trans-fer of such land is going to carry out any purpose of the Act. We are fortified in taking such view by the Constitution Bench decision of this Court in Maharao Sahib Shri Bhim Singhji v. Union of India & Ors. – (1981) 1 SCC 166 whereby sub-section (1) of Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976 was struck down as invalid insofar as it imposed a restric-tion on transfer of any urban or urbanisable land with a building or a portion only of such building which was within the ceiling area. The provision impugned therein imposed a restriction on transactions by way of sale, mortgage, gift or lease of vacant land or buildings for a period exceeding ten years, or otherwise for a period of ten years from the date of the commencement of the Act even though such vacant land, with or without building thereon, fell within the ceiling limits. The Constitution Bench held (by majority) that such property will be transferable with-out the constraints mentioned in sub-section (1) of Section 27 of the said Act. Their Lordships opined that the right to carry on a business guaranteed under article 19(1)(g) of the Constitution carried with it the right not to carry on business. It logically followed, as a necessary corollary, that the right to acquire, hold and dispose of property guaranteed to citizens under article 19(1)(f) carried with it the right not to hold any property. It is difficult to appreciate how could a citizen be compelled to own property against his will though he wanted to alienate it and the land being within the ceiling limits was outside the purview of Section 3 of the Act and that being so the person owning the land was not governed by any of the provisions of the Act. Reverting back to the case at hand, the learned counsel for the State of Himachal Pradesh has not been able to satisfy us as to how such a prohibition as is imposed by the impugned amendment in the Rules helps in achieving the object of the Act.
14. We are also of the opinion that a delegated power to legis-late by making rules ‘for carrying out the purposes of the Act’ is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself.
15. For the foregoing reasons, the appeal is allowed. The judg-ment of the High Court is set aside. The proviso inserted into sub-rule (1) of Rule 3 of the Himachal Pradesh Ceiling on Land Holdings Rules, 1973 by the notification dated 4.4.1986 (pub-lished in the Himachal Pradesh Government Gazette dated 26.4.86) and the circular order dated 21.8.90 issued by the Registrar, District Kangra at Dharamshala are declared invalid and struck down as ultra vires the powers of the H.P. Ceiling on Land Holdings Act, 1972. No order as to the costs.
1. Leave granted.
2. To consolidate and amend the laws relating to ceiling on land holdings in the State of Himachal Pradesh, the Legislative Assem-bly of Himachal Pradesh enacted Himachal Pradesh Ceiling on Land Holdings Act, 1972 (hereinafter the Act, for short). Sub-section (1) of Section 26 of the Act provides that the State Government may, by notification, make rules for carrying out the purposes of this Act. Sub-sections (2) and (3) thereof provide for previous publication of the rules and the rule being laid on the floor of the State Legislature as soon as may be after it is made. In exercise of the power so conferred the State Government has framed the Himachal Pradesh Ceiling on Land Holdings Rules, 1973 (hereinafter ‘the Rules’, for short). Rule 3 thereof reads as under :-
3. Areas to be treated as subservient to tea plantation. -(1) The following areas shall be treated as subservient to tea plan-tation :-
(a) areas on which there is programme for expansion of tea plantation during next ten years which will be determined by the State Government;
(b) areas covered by forests and forest growth of which the fuel wood, timber is required for the manufacture of the tea and main-tenance of tea estate;
(c) low-lying lands which generally serve as water reservoirs for the use of tea plantation; and
(d) land on which tea factories, labour quarters, playgrounds and other ancillary buildings are situated.
Provided that no land, treated as subservient to tea plantation under this sub-rule and exempted from the operation of the Act under Section 51(g) thereof, shall be transferred by the landown-er in any manner, without the permission of the State Government.
(2) The owner of the tea estate will submit return in Form C-1 to the Collector showing the areas he intends to include for the purpose of clause (a) of sub-rule (1) within one month from the date on which these rules will come into force. The Collector on receipt of this return shall make such inquiry as he deems fit and thereafter send his recommendations to the State Government for orders which will be final.”
3. The proviso appended to sub-rule (1) and placed just below clause (d) of sub-rule (1) was not there in the text of the Rules as originally framed. It has been inserted by amendment through Notification No.10-5/73-II Rev.B dated 4.4.86. This amendment was published in Gazette Extraordinary dated 26.4.86.
4. On 21.8.90 the Registrar, Kangra District at Dharmshala issued a general circular to all Tehsildars- cum-Sub-Registrars (of deeds) in Kangra District containing the following direction :-
“It has been brought to the notice of the Government that the land owners are selling land exempted from the provisions of the H.P. Ceiling on Land Holdings Act, 1972. Therefore you are directed not to register the sale deeds in respect of such lands, and take action in such cases under the provisions of the Land Ceiling Act, 1972 and intimate of the same to the Deputy Commis-sioner also so that proper guidance is given by him.”
5. It is the constitutional validity of amendment made in the Rules by notification dated 4.4.86 (published on 26.4.86) and the circular order dated 21.8.90 which has been put in issue by a writ petition filed by the appellants. The cause of action arose to the appellants because their effort at alienating a piece of land subservient to tea plantation was sought to be put into jeopardy.
6. Shri Anil Divan, the learned senior counsel for the appellants has raised two pleas: (i) that the Act is not applicable to land subservient to tea estates and therefore a provision made in the Rules framed in exercise of powers delegated by the Act but proposing to make provision as regards a subject excluded from within the purview of the Act is ultra vires the provisions of the Act; (ii) that the prohibition imposed by the amended rule suffers from the vice of arbitrariness and unreasonableness inasmuch as though an alienation of land forming part of tea plantation itself is not prohibited either by the Act or the rules but alienation of land subservient to tea plantation is sought to be restrained.
7. Section 4 of the Act defines the permissible area which a landowner, a tenant or a mortgagee with possession or a person holding partly one or other of the abovesaid status may hold. Section 6 places a ceiling on the entitlement to hold any land beyond what is permitted by the Act. Section 7 empowers the State Government to determine the surplus area of the land held by any one ignoring the transfer after the appointed day of a land held in excess of the permissible area except bona fide transfers. Section 5 of the Act provides for Exemptions and enacts that the provisions of this Act shall not apply amongst others to “tea estates”. Section 5 reads as under :
5. Exemptions. – The provisions of this Act shall not apply to-
(a) lands owned by the State Government or the Central Govern-ment;
(b) lands belonging to registered Co- operative Farming Socie-ties;
Provided that the share of a member of such society, together with his other land, if any, does not exceed the permissible area;
(c) lands belonging to Land Mortgage Banks, the State and Cen-tral Co-operative Banks and any other Banks as defined in the Explanation – not reproduced.
(d) lands belonging to or vested in local authorities;
(e) lands belonging to Himachal Pradesh Agriculture University;
(f) lands owned by the Bhudan Yagna Board established under the law in force in the State of Himachal Pradesh and
(g) tea estates.
8. Shri Anil Divan, the learned senior counsel for the appell-ants submitted that lands covered by seven categories as defined in clauses (a) to (g) of Section 5 have been excluded from appli-cability of the provisions of the Act. Section 26 delegates to the State Government the legislative power of making rules which delegation is circumscribed by the expression – ‘for carrying out the purposes of this Act’. In exercise of such delegated power to legislate, the State Government cannot bring within the net of the rules what has been excluded by the Act itself. We find merit in the submission so made. Tea estates are excluded from the provisions of the Act by Section 5. ‘Tea estate’ is defined in the interpretation clause of the Act to mean an area under tea plantation and includes within the definition ‘such other area necessary for purposes subservient to a tea plantation as may be prescribed’. Rule 3 defines what areas shall be treated as subservient to tea plantation. The amendment made vide notifica-tion dated 4.4.86 places an embargo on right to transfer such subservient land though exempted from the operation of the Act. Clearly the impugned proviso is beyond the rule making power of the State Government as conferred by the Act. It is well settled that the Legislature cannot delegate its essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up the details. (See: Princi-ples of Statutory Interpretation, Justice G.P. Singh, Seventh Edition 1999, at pp. 689-690)
9. In Supreme Court Employees Welfare Association v. Union of India JT 1989 (3) SC 188 = (AIR 1990 SC 334), this Court has held :-
“A delegated legislation or a subordinate legislation must con-firm exactly to the power granted.” (para 62)
“Rules whether made under the Constitution or a statute, must be intra vires the parent law under which power has been delegated.”(para 98)
10. In General Officer Commanding-in-Chief & Anr. v. Dr. Subhash Chandra Yadav & Anr. JT 1988 (1) SC 458 = AIR 1988 SC 876, it has been held :-
“Before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void.”
11. In the abovesaid case, the rule making provision of the Cantonment Act conferred power on the Central Government to make rules in the matter of “the tenure of office, salaries and allow-ances, provident funds, pensions, gratuities, leave of absence and other conditions of service of servants of boards.” In exercise of this power, the Central Government framed rules to make provision for transfer of the employees of the Boards. It was held that the rule was in excess of the rule making power given to the Central Government.
12. The Government while framing rules under the Bihar Money Lenders Act, 1938 fixed the upper limit for the loans which the money lenders could lend though the Act nowhere provided for the fixing of such upper limit. In Sant Saran Lal v. Parsu Ram Saha, AIR 1966 SC 1852 it was held that the rule making power of the Government does not extend to the fixing of such a limit as it was not empowered by the Act.
13. It is very common for the legislature to provide for a gener-al rule making power to carry out the purpose of the Act. When such a power is given, it may be permissible to find out the object of the enactment and then see if the rules framed satisfy the test of having been so framed as to fall within the scope of such general power confirmed. If the rule making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent act. (See: Sant Saran Lal & Anr. v. Parsuram Sahu & Ors., AIR 1966 SC 1852, para 19). From the provisions of the Act we cannot spell out any legislative intent delegating expressly, or by necessary implication, the power to enact any prohibition on transfer of land. We are also in agreement with the submission of Shri Anil Divan that by placing complete prohibi-tion on transfer of land subservient to tea estates no purpose sought to be achieved by the Act is advanced and so also such prohibition cannot be sustained. Land forming part of tea estate including land subservient to tea plantation have been placed beyond the ken of the Act. Such land is not to be taken in ac-count either for calculating area of surplus land or for calcu-lating area of land which a person may retain as falling within ceiling limit. We fail to understand how a restriction on trans-fer of such land is going to carry out any purpose of the Act. We are fortified in taking such view by the Constitution Bench decision of this Court in Maharao Sahib Shri Bhim Singhji v. Union of India & Ors. – (1981) 1 SCC 166 whereby sub-section (1) of Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976 was struck down as invalid insofar as it imposed a restric-tion on transfer of any urban or urbanisable land with a building or a portion only of such building which was within the ceiling area. The provision impugned therein imposed a restriction on transactions by way of sale, mortgage, gift or lease of vacant land or buildings for a period exceeding ten years, or otherwise for a period of ten years from the date of the commencement of the Act even though such vacant land, with or without building thereon, fell within the ceiling limits. The Constitution Bench held (by majority) that such property will be transferable with-out the constraints mentioned in sub-section (1) of Section 27 of the said Act. Their Lordships opined that the right to carry on a business guaranteed under article 19(1)(g) of the Constitution carried with it the right not to carry on business. It logically followed, as a necessary corollary, that the right to acquire, hold and dispose of property guaranteed to citizens under article 19(1)(f) carried with it the right not to hold any property. It is difficult to appreciate how could a citizen be compelled to own property against his will though he wanted to alienate it and the land being within the ceiling limits was outside the purview of Section 3 of the Act and that being so the person owning the land was not governed by any of the provisions of the Act. Reverting back to the case at hand, the learned counsel for the State of Himachal Pradesh has not been able to satisfy us as to how such a prohibition as is imposed by the impugned amendment in the Rules helps in achieving the object of the Act.
14. We are also of the opinion that a delegated power to legis-late by making rules ‘for carrying out the purposes of the Act’ is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself.
15. For the foregoing reasons, the appeal is allowed. The judg-ment of the High Court is set aside. The proviso inserted into sub-rule (1) of Rule 3 of the Himachal Pradesh Ceiling on Land Holdings Rules, 1973 by the notification dated 4.4.1986 (pub-lished in the Himachal Pradesh Government Gazette dated 26.4.86) and the circular order dated 21.8.90 issued by the Registrar, District Kangra at Dharamshala are declared invalid and struck down as ultra vires the powers of the H.P. Ceiling on Land Holdings Act, 1972. No order as to the costs.
