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2014 DIGILAW 882 (GAU)

Bhubaneswar Bhattacharya v. Union of India

2014-09-17

A.K.GOSWAMI, K.SREEDHAR RAO

body2014
JUDGMENT : 1. Heard the petitioner and the respondents. 2. Appellants are approved surveyors under the Insurance Companies. The Parliament enacted the Insurance Regulatory and Development Authority Act, 1999, where, section 26 vested power of making regulations with the Insurance Advisory Board, and section 27 mandated rules and regulations to be laid before Parliament. Section 26 and 27 are extracted hereunder for convenient reference. "26. (1) The Authority may, in consultation with the Insurance Advisory Committee, by notification, make regulations consistent with this Act and the rules made there under to carry out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:- (a) the time and places of meetings of the Authority and the procedure to be followed at such meetings including the quorum necessary for the transaction of business under sub-section (1) of section 10; (b) the transaction of business at its meetings under sub-section (4) of section 10; (c) the terms and other conditions of service of officers and other employees of the Authority under sub-section (2) of section 12; (d) the powers and functions which may be delegated to Committees of the members under sub-section (2) of section 23; and (e) any other matter which is required to be, or may be, specified by regulations or in respect of which provision is to be or may be made by regulations. 27. Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation". 3. 3. The Insurance Advisory Board formulated regulations effecting the service conditions of the surveyors. It is the case that the regulations now make different categories of surveyor fixing the limit of their pecuniary jurisdiction. It is stated that earlier there was no such limitation, the present regulations which fixed pecuniary jurisdiction severely affect the working conditions of the surveyors and that the said regulations has not been brought into effect with previous publication as required under section 23 of the General Clauses Act, 1897. Provisions of section 23 are extracted hereunder for convenient reference. "Where, by any [Central Act] or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely :- (1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby; (2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the [Government concerned] prescribes; (3) there shall be published with the draft of notice specifying a date on or after which the draft will be taken into consideration; (4) the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified. (5) the publication in the [Official Gazette] of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made". 4. The learned single Judge found that the provision of section 23 of the Act 1897 has no application. The provision of section 26 of the Act 1999 did not envisage previous publication as required under section 23 of the Act 1897. The requirement insisted is to the effect that such regulations and rules have to be placed before the Parliament. The learned single Judge found that the provision of section 23 of the Act 1897 has no application. The provision of section 26 of the Act 1999 did not envisage previous publication as required under section 23 of the Act 1897. The requirement insisted is to the effect that such regulations and rules have to be placed before the Parliament. On stern scrutiny of the submissions made at the Bar we find that the provision of section 23 of the Act 1897 makes it very explicit that if in any Central Act or Regulation a power to make rules or bylaws is expressed to be given subject to the condition of the rules or by-laws being made after previous publication then the following provisions will apply. (1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby; (2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the [Government concerned] prescribes; (3) there shall be published with the draft of notice specifying a date on or after which the draft will be taken into consideration; (4) the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified. (5) the publication in the [Official Gazette] of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made. 5. Reading of the said provisions makes it clear that if there is an express provision for previous publication in the Central Act or Regulation then only the procedure prescribed under section 23 of the Act 1897 gets attracted. Herein in this case, the Insurance Regulatory Development Act is an independent Act; does not provide for any previous publication. The law only provides for placing of the regulations before the Parliament. Herein in this case, the Insurance Regulatory Development Act is an independent Act; does not provide for any previous publication. The law only provides for placing of the regulations before the Parliament. Provisions of the General Clauses Act will apply only when there is an express provision in the Act in question for previous publication. When insistence of previous publication is excluded expressly and other mode of procedure of placing the regulations before Parliament is provided and if such procedure is followed it cannot be said that regulations in question violates the provisions of law. In that view of the matter the order of the learned single Judge is sound and proper. Accordingly the appeal is dismissed.