Special Leave Petition (Civil) No. 18347/2013. Case: Sidhartha Sarawgi Vs Board of Trustees for the Port of Kolkata and Ors., [Alongwith Special Leave Petition (Civil) Nos. 19458-19459, 19600 and 19652/2013]. Supreme Court (India)

Case NumberSpecial Leave Petition (Civil) No. 18347/2013
CounselFor Appearing Parties: Shyam Divan, Jayant Bhushan, T.R. Andhyarujina, Parag P. Tripathi, Sr. Advs., Manoj, Aparna Sinha, Amatva Mitra, Soumya Mazumdar, Abhijit, P. Medh, Anirudh Roi, Ratnesh Rai, Ajay Bhargava, Nanita Bhargava and Karun Mehta, Advs. for Khaitan and Co., A.V. Rangam and Buddy A. Ranganadhan, Advs.
JudgesGyan Sudha Misra and Kurian Joseph, JJ.
IssueRepresentation of Peoples Act, 1951 - Section 81; Major Port Trusts Act, 1963 - Sections 3, 5, 21, 34, 34(1); The General Clauses Act, 1897 - Section 21
Citation2014 (5) SCALE 113
Judgement DateApril 16, 2014
CourtSupreme Court (India)


Kurian Joseph, J.

1. Delegatus Non Potest Delegare: A delegate has no power to delegate, is a well-settled principle. Is there any exception and is there any distinction between delegation of legislative and non-legislative powers, are the moot issues arising for consideration in these cases.

2. Delegation is the act of making or commissioning a delegate. It generally means parting of powers by the person who grants the delegation and conferring of an authority to do things which otherwise that person would have to do himself. Delegation is defined in Black's Law Dictionary as "the act of entrusting another with authority by empowering another to act as an agent or representative". In P. Ramanatha Aiyar's, The Law Lexicon, "delegation is the act of making or commissioning a delegate. Delegation generally means parting of powers by the person who grants the delegation, but it also means conferring of an authority to do things which otherwise that person would have to do himself". Justice Mathew in Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. v. The Assistant Commissioner of Sales Tax and Ors. (1974) 4 SCC 98, has succinctly discussed the concept of delegation. Paragraph 37 reads as follows:

37... Delegation is not the complete handing over or transference of a power from one person or body of persons to another. Delegation may be defined as the entrusting, by a person or body of persons, of the exercise of a power residing in that person or body of persons, to another person or body of persons, with complete power of revocation or amendment remaining in the grantor or delegator. It is important to grasp the implications of this, for, much confusion of thought has unfortunately resulted from assuming that delegation involves or may involve, the complete abdication or abrogation of a power. This is precluded by the definition. Delegation often involves the granting of discretionary authority to another, but such authority is purely derivative. The ultimate power always remains in the delegator and is never renounced.

3. There is a subtle distinction between delegation of legislative powers and delegation of non-legislative/administrative powers. As far as delegation of power to legislate is concerned, the law is well-settled: the said power cannot be sub-delegated. The Legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and formally enacting that policy into a binding rule of conduct1. Subordinate legislation which is generally in the realm of Rules and Regulations dealing with the procedure on implementation of plenary legislation is generally a task entrusted to a specified authority. Since the Legislature need not spend its time for working out the details on implementation of the law, it has thought it fit to entrust the said task to an agency. That agency cannot entrust such task to its subordinates; it would be a breach of the confidence reposed on the delegate.

4. Regarding delegation of non-legislative/administrative powers on a person or a body to do certain things, whether the delegate himself is to perform such functions or whether after taking decision as per the terms of the delegation, the said agency can authorize the implementation of the same on somebody else, is the question to be considered. Once the power is conferred, after exercising the said power, how to implement the decision taken in the process, is a matter of procedure. The Legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of that policy2. So long as the essential functions of decision making is performed by the delegate, the burden of performing the ancillary and clerical task need not be shouldered by the primary delegate. It is not necessary that the primary delegate himself should perform the ministerial acts as well. In furtherance of the implementation of the decision already taken by the primary delegate as per the delegation, ministerial or clerical tasks may be performed by authorized officers. The complexity of modern day administration and the expansion of functions of the State to the economic and social spheres have made it necessary that the Legislature gives wide powers to various authorities when the situation requires it. Today's governmental functions are a lot more complex and the need for delegation of powers has become more compelling. It cannot be expected that the head of the administrative body performs each and every task himself.

5. The issue was considered by this Court in Jamal Uddin...

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