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“21. The second question which falls for consideration is
whether the Bihar Regulation I of 1951 is in excess of the
Governor’s powers. The contentions were: first, that the
Regulation I of 1951 could not at all have been made; secondly,
that Regulations deal with the subject-matter and did not mean
power to apply law and thirdly, the power to extend a law passed
by another legislature was said to be not a legislative function,
but was a conditional legislature. The legislation, in the present
case, is in relation to what is described as Scheduled Areas. The
Scheduled Areas are dealt with by Article 244 of the Constitution
and the Fifth Schedule to the Constitution. Prior to the
Constitution, the excluded areas were dealt with by Sections 91
and 92 of the Government of India Act, 1935. The excluded and
the partially excluded areas were areas so declared by order in
Council under Section 91 and under Section 92. No act of the
Federal Legislature or of the Provincial Legislature was to apply
to an excluded or a partially excluded area unless the Governor
by public notification so directed. Sub-section (2) of Section 92
of the Government of India Act, 1935 conferred power on the
Governor to make regulations for the peace and good
31
government of any area in a Province which was an excluded or
a partially excluded area and any regulations so made might
repeal or amend any Act of the Federal Legislature or the
Provincial Legislature or any existing Indian law which was for
the time being applicable to the area in question. The extent of
the legislative power of the Governor under Section 92 of the
Government of India Act, 1935 in making regulations for the
peace and good government of any area conferred on the
Governor in the words of Lord Halsbury "an utmost discretion of
enactment for the attainment of the objects pointed to." (See Riel
v. Queen, LR 10 AC 657 at 658)). In that case the words which
fell for consideration by the Judicial Committee were “the power
of the Parliament of Canada to make provisions for the
administration, peace, order and good government of any
territory not for the time being included in any province”. It was
contended that if any legislation differed from the provisions
which in England had been made for the administration, peace,
order and good government then the same could not be sustained
as valid. That contention was not accepted. These words were
held to embrace the widest power to legislate for the peace and
good government for the area in question.
22. The Fifth Schedule to the Constitution consists of 7 paras and
consists of Parts A, B, C and D. Para 6 in Part C deals with
Scheduled Areas as the President may by order declare and there
is no dispute in the present case that the Santhal Parganas falls
within the Scheduled Areas. Para 5 in the Fifth Schedule deals
with laws applicable to Scheduled Areas. Sub-para 2 of para 5
enacts that the Governor may make regulations for the peace and
good government of any area in a State which is for the time
being a Scheduled Area. Under sub-para 3 of para 5, the
Section 92 of the Government of India Act, 1935 ceased to exist
after repeal of the Government of India Act, 1935 by Article 395
of the Constitution. It was contended that the power to make
regulations did not confer power on the Governor to apply any
23. It was said by Counsel for the appellants that the power to
apply laws under the Fifth Schedule was synonymous with
conditional legislation. In the present case, it cannot be said that
the Bihar Regulation I of 1951 is either a piece of delegated
legislation or a conditional legislation. The Governor had full
power to make regulations which are laws and just as Parliament
can enact that a piece of legislation will apply to a particular
State, similarly, the Governor under para 5 of the Fifth Schedule
can apply specified laws to a Scheduled area. The Bihar
Regulation I of 1951 is an instance of a valid piece of legislation
emanating from the legislative authority in its plenitude of power
and there is no aspect of delegated or conditional legislation.”
(emphasis supplied)
41. In Hota Venkata Surya Sivarama Sastry and Anr. v. State of
Andhra Pradesh, (1962) 2 SCR 535: AIR 1967 SC 71, the question
came up for consideration as to the power to apply the laws under
para 5(2). This Court opined that the power to repeal or amend is
legislative, and the regulations made in exercise of this power, cannot
be said to be delegated or conditional legislation. This Court held: