Delegated Legislation Which Is Ultra Vires The Parent Act Cannot Be Given Any Effect : Supreme Court

The Supreme Court observed that a delegated legislation which is ultra vires the parent Act cannot be given any effect.

It is the function of the courts to keep all authorities within the confines of the law by supplying the doctrine of ultra vires, the bench of Justices Dinesh Maheshwari and J B Pardiwala observed while allowing an appeal filed by the Kerala State Electricity Board against the judgment of Kerala High Court.

In this case, the Kerala High Court held that 'unauthorised additional load' in the same premises and under the same tariff shall not be reckoned as 'unauthorised use of electricity' except in cases of consumers billed on the basis of the connected load. The High Court had relied upon Regulation 153(15) of the Kerala Electricity Supply Code, 2014 to come to this conclusion.

In appeal, the Apex Court bench observed that this view by the High Court is in the teeth of the precedent in Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) and Another v. Sri Seetaram Rice Mill (2012) 2 SCC 108.

The court also declared that the Regulation 153(15) of the Kerala Electricity Supply Code, 2014 as invalid for being inconsistent with the provision of Section 126. In its judgment, the bench made the following observations regarding the scope of delegated legislation and the doctrine of ultra vires.

 A rule must be in accord with the parent statute, as it cannot travel beyond it

If a rule goes beyond the rule making power conferred by the statute, the same has to be declared invalid. If a rule supplants any provision for which power has not been conferred, it becomes invalid. The basic test is to determine and consider the source of power, which is relatable to the rule. Similarly, a rule must be in accord with the parent statute, as it cannot travel beyond it

The doctrine of ultra vires

The doctrine of ultra vires envisages that a rule making body must function within the purview of the rule making authority conferred on it by the parent Act. As the body making rules or regulations has no inherent power of its own to make rules, but derives such power only from the statute, it has to necessarily function within the purview of the statute. Delegated legislation should not travel beyond the purview of the parent Act. If it does, it is ultra vires and cannot be given any effect.

Ultra vires may arise in several ways

Ultra vires may arise in several ways; there may be simple excess of power over what is conferred by the parent Act; delegated legislation may be inconsistent with the provisions of the parent Act or statute law or the general law; there may be noncompliance with the procedural requirement as laid down in the parent Act. It is the function of the courts to keep all authorities within the confines of the law by supplying the doctrine of ultra vires.

Rules or regulation cannot be made to supplant the provisions of the enabling Act but to supplement it. 

Rules or regulation cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinating legislative functions, or, what is fictionally called, a power to fill up details.

Validity of a subordinate legislation- Consideration

The Court, considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power as has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute.. It is important to keep in mind that where a rule or regulation is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the Court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the Court should proceed with caution before declaring the same to be invalid.

Case details

Kerala State Electricity Board vs Thomas Joseph Alias Thomas M J | 2022 LiveLaw (SC) 1034 | CA 9252-9253 OF 2022 | 16 December 2022 | Justices Dinesh Maheshwari and JB Pardiwala

For Appellant(s) Mr. R. Basant, Sr. Adv. Mr. Raghenth Basant, Adv. Mr. P. V. Dinesh, AOR Mr. Vishnu Pazhanganat, Adv. Ms. Roopali Lakhotia, Adv. Mr. Ajay Krishna, Adv. Mr. Bineesh K., Adv. Mr. Rahul Raj Mishra, Adv.

For Respondent(s) Mr. Nishe Rajen Shonker, AOR Mr. Mohammed Sadique T.a., AOR M/S. Kmnp Law Aor, AOR Mr. C. K. Sasi, AOR Mr. Dhananjaya Mishra, AOR, Sriram Parakkat AOR

Headnotes

Electricity Act, 2013 ; Section 126(6) - Consumption of electricity in excess of the connected load/contracted load would amount to 'unauthorised use of electricity' under explanation (b) to Section 126(6) - Followed Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco) vs Sri Seetaram Rice Mill (2012) 2 SCC 108. (Para 54-58)

Electricity Act, 2013 ; Section 126 -  Kerala Electricity Supply Code, 2014 ; Regulation 153(15) - Regulation 153(15) of the Code 2014 is declared to be invalid being inconsistent with the provision of Section 126. (Para 82,89)

Delegated legislation - Delegated legislation should not travel beyond the purview of the parent Act. If it does, it is ultra vires and cannot be given any effect -Rules or regulation cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinating legislative functions, or, what is fictionally called, a power to fill up details - Fine distinction between a rule and regulation and also the power of the delegate authority to frame such rules or regulation - Referred to Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975) 1 SCC 421 (Para 64-81)

Doctrine of Ultra Vires - A rule making body must function within the purview of the rule making authority conferred on it by the parent Act - Ultra vires may arise in several ways; there may be simple excess of power over what is conferred by the parent Act; delegated legislation may be inconsistent with the provisions of the parent Act or statute law or the general law; there may be noncompliance with the procedural requirement as laid down in the parent Act. It is the function of the courts to keep all authorities within the confines of the law by supplying the doctrine of ultra vires. (Para 65)

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