JUDGMENT 1. - The question raised by the learned counsel for the petitioners Mr. PP Choudhary in this petition is that State Government by issuing a notification being Notification " dzekad ,Q 40 fof/k@xzkfoi@tujk;&99 " 20.9.1999 has provided "competent authority" in terms of Section 2(vii) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act of 1994') According to the learned counsel for the petitioner, such conferment of powers on State Government by Section 2(vii) is violative of provisions of the 5 Constitution of India. Indian Constitution has provided in sub-Art. 2 of Article 243-F in the following terms:-- "If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (I), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide." 2. According to the learned counsel for the petitioners, it is provided in the above referred constitutional provision that a question regarding disqualification shall be referred to such authority and in such manner as the legislature of the State may be law provide. Learned counsel for the 5 petitioners urges that such providence for the authority has to be made by legislature alone and legislature cannot be a legislative provision leave this power to be exercised by the Government in its executive capacity. That being the position, the provisions of Section 2(vii) is of the nature where un-restricted and un-guided powers have been conferred on the State Government for the prescription of the competent authority. Therefore, the provisions of Section 2(vii) of the Act of 1994 are violative of Article 243-F of the Constitution of India. It has to be read in Article 243-F that Legislature will not have the power to further delegate its power to any such authority to be named by notification. The authority was required to be named in the Act 25 itself. 3. Learned counsel for the petitioners further urged that in terms of Sections 38 & 39 of the Act of 1994, proceedings against Sarpanch and Up Sarpanch are taken in terms of Rules 22 & 23 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the Rules of 1996'). 3. Learned counsel for the petitioners further urged that in terms of Sections 38 & 39 of the Act of 1994, proceedings against Sarpanch and Up Sarpanch are taken in terms of Rules 22 & 23 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the Rules of 1996'). After 3c, proceedings are taken under the Rules, it is left on the competent authority specified by the State Government to pass final order under section 39 of the Act. It is emphasised that when State Government is required to handle the matter for taking appropriate proceedings against the Sarpanch and Up-Sarpanch under sections 38 & 39 of the Act of 1994, then leaving it to the competent authority asdefined under the notification, presently it being the Divisional Commissioner to pass final orders that Amounts to conferring powers on a junior authority, after the senior authority had taken appropriate proceedings. 4. Rule 22 of the Rules of 1996 provides for the procedure of enquiry wherein, it is delineated that on its own motion or upon any complaint, the State Government may ask the Chief executive officer or any other officer to get a preliminary enquiry done in relation to Sarpanch or Up-sarpanch. After the preliminary enquiry is held and reports is received, the State Government may in its opinion exercising powers under sub-section (1) of Section 38 of the Act of 1994 frame definite charges and communicate the same to the 45 chairperson or Dy. Chair-person of the Panchayati Raj Institution and in turn, the Member is required to submit his written statement within one month by either admitting or denying the allegations and giving his defence, if any and also communicate if he desires to be heard in person. 5. If the proceedings u/R. 23 of the Rules of 1996 are resorted to wherein, the enquiry is held after notice either by the Executive Officer or the State Government as the case may be, after hearing the informant and the officer concerned in relation to the allegations, make further inquiry as it is found necessary and make appropriate orders either proceeding further or dropping the matter or declare the seat vacant or any other appropriate order. 6. 6. It is urged by the learned counsel for the petitioners that the power to pass final order has been conferred on the State Government as is evident from language of Rr, 22 & 23 of the Rules of 1996. Unless, these rules are amended, it is not possible to authorise the Commissioner to pass any final orders in relation to Sarpanch or Up-Sarpanch. 7. Mr. M.S. Singhvi appearing for the petitioners urged that providence in Article 243-0 in the Constitution of India makes its clear that legislature in its own wisdom has delineated two different phrases, one "by law" and another "under law". These expressions nave not been used without purpose. These expressions carry definite connotation. They inter in themselves a different is scope of operation of law as given by the legislature. In support of his argument, learned counsel places reliance on a Supreme Court's judgment in the case of Dr. Indramani Pyarelal Gupta & Ors. v. W.R. Natu & Ors., reported in AIR 1963 SC page 274 wherein Hon'ble Supreme Court has held as under: "15. A more serious argument was advanced by learned counsel based upon the submission that a power conferred by a bye-law framed WS. 11 & 12 was not one that was conferred by or under the Act or as may be prescribed". Learned counsel is undoubtedly right in his submission that a power conferred by a bye-law is one conferred "by the Act", for in the context the expression "conferred by the Act" would mean "conferred expressly or by necessary implication by the Act itself". It is also common ground that a bye-law framed under section 11 or 12 could not fall within the phraseology "as may be prescribed", for the expression "prescribed" has been defined to mean "by rules under the Act", i.e. those framed under section 28 and a by-law is certainly not within that discretion. The question therefore, is whether a power conferred by a bye-law could be held to be a power "conferred under the Act". The meaning of the words "under the Act" is well known. "By" an Act would mean by a provision directly enacted in the Statute in question and which is gather able from its express language or by necessary implication therefrom. The meaning of the words "under the Act" is well known. "By" an Act would mean by a provision directly enacted in the Statute in question and which is gather able from its express language or by necessary implication therefrom. The words "under the Act" would, in that context signify what is not directly to be found in the Statute itself but is conferred or imposed done: in other words "bye-laws made by a Subordinate law-making authority which is empowered to do so by the parent Act. The distinction is thus between what is directly done by the enactment and what is done indirectly by rule-making authorities which are vested with powers in that behalf by the Act (Vide Hubri Electricity Company Ltd. v. Province of Bombay, 76 Ind App 57 at p. 66 : ( AIR 1949 PC 136 at. P 139) and Narayana Swamy Naidu v. Krishna Murthi, ILR (1958) Mad 515 at p. 547 : ( AIR 1958 Mad. 343 at p. 359) . That in such a sense bye-laws would be subordinate-legislation "under the Act" is clear from the terms of Sections 11 & 12 themselves. Section 11(1) enacts: "11. (1) 8. Learned counsel for the petitioners urged that powers conferred on so the State Government by the Act as is delineated in Section 38 of the Act cannot be further delineated by the State Government exercising these powers under section 2(vii) or Section 98 of the Act of 1994 because then it would mean that Act of State Government is "by the law" and not "under the law" and therefore, this 1 is not doing justice to the language of the Statute itself. 9. To support his argument, learned counsel for the petitioners rules on a case decided by Hon'ble Supreme Court in the case of A.N. Parasuraman Etc. v. State of Tamil Nadu. reported in AIR 1990 SC Page 40 wherein 5 Hon'ble Supreme Court has held as under: "5. The point dealing with legislative delegation has been considered in numerous cases of this Court, and it is not necessary to discuss this aspect at length. It is well established that determination of legislative policy and formulation of rule of conduct are essential legislative, functions which cannot be delegated. The point dealing with legislative delegation has been considered in numerous cases of this Court, and it is not necessary to discuss this aspect at length. It is well established that determination of legislative policy and formulation of rule of conduct are essential legislative, functions which cannot be delegated. What is permissible is to leave to the delegated authority the task of implementing the object of the Act after the legislature lays down adequate guidelines for the exercise of power. When examined in this light. the impugned provisions miserably fail to come to the required standard. 6. The purpose of the Act is said to regulate the private educational institutions but does not give any idea as to the manner in which the control over the institutions can be exercised. The Preamble which describes the Act "for regulation" is not helpful at all. Learned counsel for the State said that the Objects and the Reasons for the Act are to 20 eradicate corrupt practices in private educational institutions. The expression "private educational institution- has been defined as meaning any college, school or other institution "established and run with the object of preparing, training or guiding its students for any certificate, degree or diploma" and it can, therefore, be readily inferred 25 that the purpose of the Act is to see that such institutions do not exploit the students; and while they impart training and guidance to the students of a standard which may effectively improve their knowledge so as to do well at the examination, they do not charge exorbitantly for their services. But the question is as to how this objective can be achieved. Section which empowers the competent authority to grant or refuse to grant permission for establishing and running an institutions does not give any idea as to the conditions which it has to fulfill before it can apply for permission under the Act, nor are the tests indicated for refusing permission or cancelling under section 7 of an already granted permission. The authority concerned has been left with unrestricted and un-guided discretion which renders the provisions unfair and discriminatory." 10. The powers of specification of a competent authority u/Art. 243-F of the Constitution of India is given to the State Government to be exercised. The authority concerned has been left with unrestricted and un-guided discretion which renders the provisions unfair and discriminatory." 10. The powers of specification of a competent authority u/Art. 243-F of the Constitution of India is given to the State Government to be exercised. When State Government legislates a provision of the nature of Section 2(vii) and of the Act of 1994, then it is a matter of excessive delegation. It is impermissible, because legislative function of specifying the competent authority has been conferred on the State Government by the provision of Constitution of India, namely. Article 243-F It should have been exercised by 45 State legislature only by specific competent authority in the enactment itself. 11. He further relies on a decision of Hon'ble Supreme Court in the case of Agricultural Market Committee v. Shalimar Chemical Works Ltd., reported in AIR 1997 SC Page 2502 wherein, Hon'ble Supreme Court has held as under: "26. The principle which, therefore, emerges out is that the essential legislative function consists of the determination of the legislative policy and the Legislature cannot abdicate essential legislative function in favour of another. Power to make subsidiary legislation may be entrusted by the Legislature to another body of its choice but the Legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates. These principles also apply to Taxing Statutes. The effect of these principles is that the delegate which has been authorised to make subsidiary Rules and Regulations has to work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making Rules, legislate on the field covered by the Act and has to restrict itself to the mode of implementation of the policy and purpose of the Act. 12. Further reliance has been placed on a Supreme Court decision in the case of Kunj Behar' Lal & Ors. v. State of H.P. & Ors., reported in (2000) 3 SCC Page 40 wherein Hon'ble Supreme Court held as under:- "13. It is very common for the legislature to provide for a general rule making power to carry out the purpose of the Act. v. State of H.P. & Ors., reported in (2000) 3 SCC Page 40 wherein Hon'ble Supreme Court held as under:- "13. It is very common for the legislature to provide for a general 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 Saha & 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 prohibition 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 account either for calculating area of surplus land or for calculating area of land which a person may retain as falling within ceiling limit. We fail to understand how a restriction on transfer 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 restriction 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 as period exceeding ten years, or otherwise for a period of ten years from the date of 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 without 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 u/Art. 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 u/Art. 19(1)(f) carried with it the 1 right not to hold and property. It is difficult to appreciate how could a citizen be compelled to own property against his will though he wanted a to alienate 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. 13. Learned counsel further emphasizes that as and when an order is passed by the State Government in the name of Governor, recourse has to be made to Article 166 of Constitution of India which reads as under: "166. Conduct of business of the Government of a State. (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion." 14. In terms of above Article, whatever are the rules made by the Governor, they will govern the passing of orders by the State Government and delegation as provided under section 2(vii) or 98 of the Act of 1994 would not be valid exercise of powers through State Government. Through the State 3 Government authorities will pass order under the rules framed by the Governor under sub-art. (3) of Article 166 of Constitution of India but that is providence by the Constitution. 15. Other learned counsel have adopted the arguments advanced by Mr. M.S. Singhvi and Mr. PR. Choudhary. 16. Per contra, learned Additional Advocate General appearing for State emphasizes that the expression used in Article 243-F is "by or under law". In sub-art. (2) of Article 243-F, it only speaks of "by law". In Article 243-G, it has been prescribed that the State Government may, by law, endow the Panchayats with such powers and authority as may he necessary to enable them to function as institutions of self-government. In these two Arts. i.e. 243-F & 243-G, the expression "by law" has been whereas, in Article 243-0, both expressions "by law" and "under law" have been used. Learned Additional Advocate General submits that when the State Government functions under section 38 of the Act of 1994, it is to have some authority to exercise these powers. 45 State Government functions under a discipline of different officers and for that, providence has been made for delegation of powers under section 98 of the Act of 1994. As regards the providence for making sub-rules and rules, it is under sections 102, 103 & 104 of the Act of the Act of 1994. Special care has been taken by the legislature by making such provisions under the legislature and that so competent authority is distinctly defined and designated under a State provision to respect the providence made in Article 243-F of the Constitution. 17. Special care has been taken by the legislature by making such provisions under the legislature and that so competent authority is distinctly defined and designated under a State provision to respect the providence made in Article 243-F of the Constitution. 17. Learned Additional Advocate General emphasizes that Section 96 of the Uttar Pradesh Panchayat Act which is in pan material with Section 98 of the Act of 1994 came up for consideration of Hon'ble Supreme Court in the case of State of U.P. & Ors. v. Pradhan Sangh Kshetra Samiti & Ors., reported 5 in 1995 Supp (2) SCC page 305 . Hon'ble Supreme Court has held in the following terms: "46. While supporting the judgment of the High Court, the respondents raised some additional contentions. The first contetnion was that it was not competent for the State Government under section 96-A of the Act to delegate its power to the Director, the delegation being in contravention of the provisions of Article 243(g) of the Constitution. We have pointed out earlier that under the Constitution, Governor means the State Government. Article 154(1) enables the officers subordinate to him in accordance with the Constitution. Hence, by virtue of Article 163. the State Government can exercise the power through its officers. Neither Article 243(g) nor any other provision in Part IX of the Constitution prevents the Governor and, therefore, the State Government from delegating its power mentioned in the said Part to any subordinate officer. The Act makes a specific provision by Section 96-A thereof for the State Government to delegate all or any of its powers under the Act to any officer or authority subordinate to it subject to such conditions and restrictions as it may deem fit to impose. The State Government by a notification issued on 9.5.1994 under section 96-A delegated its powers under sections 3 & 11-I of the Act to the Director. We have already pointed out that the power delegated under sections 3 & 11-F of the Act would impliedly include the power to declare 'village' under section 2(i) of the Act although the said section is not mentioned in the notification specifically. Hence, we do not see any substance in this contention either." 18. We have already pointed out that the power delegated under sections 3 & 11-F of the Act would impliedly include the power to declare 'village' under section 2(i) of the Act although the said section is not mentioned in the notification specifically. Hence, we do not see any substance in this contention either." 18. Hon'ble Supreme Court has upheld the validity of Section 96 of the U.P. Panchayat Act after discussing the Sec. of U.P. Panchayat Act in relation to 30 Article 243-G of Constitution of India. In this case, it has been held by the Hon'ble Supreme Court that delegation in terms is possible so as to enforce the spirit of enactment made in relation to Part IX of the Constitution. Thus, it is a generalised prescription that all delegations are permissible in view of decision of Hon'ble Supreme Court referred to above. 19. We have heard the learned counsel for the parties and have given our thoughtful consideration. 20. When we read Section 38 of the Act of 1994, we see that it has been provided that the State Government may, by order in writing and after giving opportunity of being heard and making such inquiry as may be deemed necessary remove from the office, a Chairperson or a Dy. Chairperson of a Panchayati Raj Institution. Use of the word "State Government" in this section is like using the expression 'State Government" in any other provision. When we see that State Government has to perform the act as delineated under the provisions of law, what necessarily means is that some official of the State Government has the responsibility to discharge such obligation. If the functions of the State Government are regulated by officers, then the functions attributed to State Government has to be seen to be one, which is to be performed by officers only. Which officer will perform a particular function is prescribed by rules framed u/Art. 166 of the Constitution of India. In terms of Article 106 of the Constitution of India, Governor has been empowered to make the rules of business of the Government. Such rules of business have the providence of allocating work. 21. This can be seen that the Governor of a State under rules known as Conduct of Business Rules prescribes that a particular authority in the Government will exercise such powers as provided. Such rules of business have the providence of allocating work. 21. This can be seen that the Governor of a State under rules known as Conduct of Business Rules prescribes that a particular authority in the Government will exercise such powers as provided. It can be seen Mat in the functioning of the Government, prescription of authority is inherent in the scheme of functions, under which a Government functions. The Constitution gives such authority to the executive that it can formulate its own rules of business. When we examine Section 2(vii) of the Act of 1994, then, the provisions of Section 2(vii) can be seen to conform to such time tested functional performance of the Government and it cannot be seen to be something un-known or foreign to the functioning of the Government. 22. Hon'ble Supreme Court in the matter of Pradhan Sangh Kshetriya Samiti (supra) has clearly seen, that powers of delegation prescribed in the Act of Uttar Pradesh is not in contravention with the provisions of the Constitution. Hon'ble Supreme Court has thus, upheld the validity of such 15 provision which has delineated powers of delegation. Such delegation has been held to be valid in view of Article 154(1) and Article 166 of the Constitution of India. This interpretation of Hon'ble Supreme Court has come in the light of Article 243-G of the Constitution of India. 23. If the provisions of Articles 243-G & 243-F are read together, then it 20 can be seen that Article 243-F prescribes for dis-quantification from membership of a Panchayati Raj Institution and Article 243-G defines the powers, authority and responsibilities of the Panchayat. When the Hon'ble Supreme Court has considered that the powers, authority and responsibilities as defined in Article 243-0 can be delegated. then it necessarily implies that the authority referred u/Art. 243-F can be one which can be assigned powers. An authority which can be prescribed u/Art. 243-G will be an authority which will have the effect of discharging the responsibilities and powers assigned to the Self Government institutions. When such authority is liable to be assigned to the institution 30 of self governance u/Art. 243-G, then authority referred in Article 243-F, it is left to be prescribed by the State Government under its executive function 2(vii) of the Act of 1994, then it cannot be seen that it is in violation of the powers conferred on the State Government. As and when a notification is issued under section 2(vii) of the Act of 1994, then such a notification under a law and such prescription of authority is bye-law. Therefore, the intention of the Constitutional provisions is clearly covered up in the legislative enactment being the Act of 1994 and it cannot be said that it suffers from any incapacity. 24. We may here give out thoughts to the cases relied upon by the learned counsel for the petitioners to impugn the provisions of Section 2(vii) of the Act of 1994. In the case of Dr. lndramani Pyarelal Gupta & Ors., (supra) it was a prescription made bye-law. Bye-laws as referred were not the rules framed under the Act. Bye-laws referred were the subordinate legislation and were not covered by the expression "authority" under the Act. The notification of prescribing authority is directly under the provisions of the Statute and the statutory provision being Section 2(vii), the law laid down in the case of Dr. lndramani Pyarelal Gupta, (supra) will not be of any assistance to the petitioners. 25. In the case of A.N. Parasuraman, (supra) and Agricultural Market so Committee, (supra) Honble Supreme Court was pleased to hold that principles which are essentially legislative functions covering the field of policy making cannot be delegated. According to the ratio of these two cases, what can be delegated is implementation of the object of the Act. Prescribing an authority under section 2(vii) of the Act of 1994 can only be seen to be an act of implementing the policy conceived under the provisions of Act of 1994. It cannot be seen that it has any colour of performing legislative functions. Thus, these cases too are of no assistance to the learned counsel for the petitioners. 26. From the aforesaid, what necessarily implies is that an act of prescribing an authority as delineated under section 2(vii) is in conformity with the 10 legislative policies conceived under the Act of 1994 and this does not make out a case where it can be held that Section 2(vii) is in conflict with any constitutional provision. Thus, an attempt to challenge its validity cannot succeed and consequently it fails. We have not agreed with the learned counsels for the petitioners wherein, a challenge was made to Section 2(vii) of the Act. Thus, an attempt to challenge its validity cannot succeed and consequently it fails. We have not agreed with the learned counsels for the petitioners wherein, a challenge was made to Section 2(vii) of the Act. The writ petition becomes subject to jurisdiction of the Division Bench only if a question involving the vires of the Act is germane. We have not considered that any question of vires Is germane In the writ petitions as Section 2(vii) of the Act of 1994 has been held to be valid. The, efore, this Court considers that it would not be appropriate to touch the merits of the case. 20 When the vires of Section 2(vii) have been upheld, the matter becomes cognizable by Single Bench of this Court and it would be proper if the matters are remitted to a proper Bench for appropriate decisions in accordance with law. 27. Consequently, this Court upholds the vires of Section 2(vii) of the Act 25 of 1994 and it is ordered that the cases be placed before the concerned Single Bench for dealing with in accordance with law because it does not involve the question of vires any more. *******