BEFORE THE

HONBLE SUPREME COURT OF INDIA

Under
Article 132 of the Constitution of India, 1950

IN THE MATTER OF

Mr. Ahmad Ali.....................................................................(Appellant)

v/s.
Air Jharkhand................................................................ (Respondent)

ON SUBMISSION TO THE HONBLE SUPREME COURT OF INDIA

DRAWN AND FILED BY THE COUNSEL FOR APPELLANT
-: MEMORIAL ON BEHALF OF APPELLANT :-

Counsel for the Appellant

ROHIT RAGHUWANSHI
ROLL NO. 183,
SEM. VI, (A)

Memorial On Behalf of AppellantPage 1

TABLE OF CONTENTS

1. INDEX OF AUTHORITIES ...3-5.

1.1 Case Laws ............................................................................................................3.
1.2 Statutes and Guidelines ........................................................................................4.
1.3 Books & Websites ...4.
1.4 List of Abbreviations.............................................................................................5.
2. STATEMENT OF JURISDICTION......................................................................6.
3. STATEMENT OF FACTS .....................................................................................7.
4. STATEMENT OF ISSUES .....................................................................................8.
5. SUMMARY OF ARGUMENTS ............................................................................9.
6. ARGUMENTS ADVANCED .................................................................................10-20.
7. PRAYER .............................................................................................................. 21.

INDEX OF AUTHORITIES

CASE LAWS
Memorial On Behalf of AppellantPage 2

1. Bharat Bank Ltd., Delhi v. Union of India,.AIR 1950 SC 188.

2. Pritam Singh v. the State,AIR 1950 SC 169.
3. Tarapada De and Ors. v. the State of West Bengal,AIR 1951 SC 174.
4. State of J. & K. v. Ganga Singh Thakur,.AIR 1960 SC 356.
5. Sri Anadi Mukta Sadguru S.M.V.S.J.M.S. trust v. V.R. Rudani,AIR 1989 SC 1607.
6. The state of Orissa v. Madan Gopal Rungta,AIR 1952 SC 12.
7. Sharif Ahmad v. H.T. Meerut,.AIR 1978 SC 209.
8. Prem Chand Garg v. Excise Commissioner, U.P.,AIR 1963 SC 996.
9. R.C. Cooper v. Union of India,..AIR 1970 SC 564.
10. Ishwar Singh v. State of Rajasthan,...AIR 2005 SC 773.
11. V.T. Khanzode v. R.B.I.,....(1982) 2 SCC 7.
12. Mahesh Chandra v. U.P. financial corporation,...AIR 1993 SC 935.
13. Sale Tax officer v. Abraham,...AIR 1967 SC 1823.
14. Jyoti Pershad v. Administrator, Union territory of Delhi,..AIR 1961 SC 1605.
15. Gwalior Rayon Co. v. Assistant Commissioner of Sale Tax, .....AIR 1974 SC 1660.
16. Registrar, Co-operative Societies v. K. Kunjabmu,..AIR 1980 SC 351.
17. Jalan Trading Co.(P.) Ltd. v. Mill Mazdoor Sabha,....AIR 1967 SC 691.
18. Agriculture Market Committee v. Shalimar Chamical,....(1997) 5 SCC 516.
19. Hamdard Dawakhana v. Union of India,.....AIR 1960 SC 554.
20. Hansraj L. Chulani v. Bar Council of Maharashtra & Goa, ....AIR 1996 SC 1708.
21. St. John Teachers Training Institute v. N. C. T. E. ... (2003) 3 SCC 321.
22. M/s Devi Das v. State of Punjab, ...AIR 1967 SC 1898.
23. Harak Chand v. Union of India,.AIR 1970 SC 1456.
24. R. D. Shetty v. International Airport Authority of India......AIR 1979 SC 1628.

STATUTES & GUIDELINES

1.

The Constitution of India, 1950

BOOKS

1. Jain, M.P., Indian Constitutional Law, Sixth Edn., Lexis Nexis Butterworths Wadhwa,
Nagpur.
2. Basu, Durga Das, Commentary on the Constitution of India, Eighth Edition, Lexis
Nexis Butterworths Wadhwa, Nagpur 2009.

Memorial On Behalf of AppellantPage 3

3. Kesari, Dr. U.P.D. Administrative Law, 19thEdn., Central law Publications, Allahabad,
2012.
4. Massey, I.P., Administrative Law, 8th Edn., Eastern book Company, Lucknow, 2012.
5. Jain, M.P. & Jain, S.N. Principles of Administrative Law, 7th Edn., Lexis Nexis,
Butterworths, Wadhwa, Nagpur, 2011.
6. Takwani, C.K., Lectures on Administrative Law, 4th Edn., Eastern Book Company,
Lucknow, 2011.

WEBSITES

1.
2.
3.
4.

www.manupatra.com
www.lexis-nexisindia.com
www.indiankanoon.com
www.westlawindia.com

ABBREVIATIONS

1. &

And

2. AIR

All India Reporter

3. Anr

Another

4. Cl

Clause

5. Edn.

Edition

6. Ors.

Others

7. P.

Page

8. Pp.

Pages

9. v.

Versus
Memorial On Behalf of AppellantPage 4

10. SC

Supreme Court

11. SCC

Supreme Court Case

12. Honble

Honourable

13. Sec.

Section

14. Ltd.

Limited

15. Co.

Company

16. Pvt.

Private

17. U.P.

Uttar Pradesh

18. R.B.I.

Reserve Bank of India

STATEMENT OF JURISDICTION

The Counsel for the Appellant has approached the Jurisdiction to this Honble Supreme Court of
India under Article 1321 of the Indian Constitution, 1950 to hear the present matter and adjudge
accordingly.
1 Article 132 of the Constitution of India, 1950 :- Appellate jurisdiction of Supreme Court in appeals from High
Courts in certain cases ( 1 ) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a
High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under
Article 134A that the case involves a substantial question of law as t the interpretation of this Constitution
(2) Omitted
(3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any
such question as aforesaid has been wrongly decided Explanation For the purposes of this article, the expression
final order includes an order declaring an issue which, if decided in favour of the appellant, would be sufficient for
the final disposal of the case

Memorial On Behalf of AppellantPage 5

STATEMENT OF FACTS

Air - Jharkhand (AJ) is a statutory public corporation incorporated by Parliament through

the Jharkhand Air Corporation Limited Act, 2002 having 30% fully paid up share capital
acquired by Jharkhand Government and rest by Central Government.
AJ was developed during the formation of Jharkhand State to boost up states tourism
industry with social restructuring of employees and is presently doing business mainly in
area domestic airlines with 15 airbuses as per norms of Director General of Civil Aviation
and Airport Authority of India.
The corporation has the Board of Directors and Board is the highest authority in the
management and regulation of corporation. The Air Jharkhand Rules, 2004 was framed
by corporation which has given absolute authority to Chairperson of AJ relating to
Memorial On Behalf of AppellantPage 6

managerial and decision making process. On 31st September 2011 AJ decided to sale its 5
aircrafts through one board meeting and as per rules of 2004 one expert committee was
formed under the headship of chief executive aeronautical engineer to select the aircraft
for sale and also to find out buyer.
On 23rd December a notification was published in local newspaper by chairman relating
to sale of aircrafts through auction and highest bidder would be able to purchase. Finally
5 aircrafts were sold to Ranchi based businessman Ram Ratan Lakhani of White star
Airlines on 12th April 2012 at rupees 6 crores which was the highest bidding. There was a
canard that Lakhani group was very much closely associated with Chairman of AJ.
On 10th august 2012 one of the employees Mr. Ahmad Ali filed a writ of mandamus at
High Court against the decision of AJ about selling of 5 aircrafts. Petitioner also claimed
the rules of AJ have given excessive power to chairman and on the personal interest
chairman has sold aircrafts one of his associates. Due to this administrative decision
corporation has suffered huge loss which has affected normal course of business. But the
High Court rejected the petition mentioning that petitioner has no locus standi and also
chairman has done everything according to provision of rules of 2004.
Now Ali has filed one appeal against the decision of high court.

STATEMENT OF ISSUES

1. WHETHER APPEAL IS MAINTAINABLE OR NOT?

(i)

WHETHER THE APPELLANT CAN APPROACH UNDER ARTICLE 132 OF

THE INDIAN CONSTITUTION?

(ii)

WHETHER THE APPELLANT HAS A LOCUS STANDI IN THE PRESENT

CASE?

2. WHETHER THERE IS AN EXCESSIVE DELEGATION OF LEGISLATIVE

POWER TO AIR JHARKHAND?

Memorial On Behalf of AppellantPage 7

SUMMARY OF ARGUMENTS

1. WHETHER APPEAL IS MAINTAINABLE OR NOT?

(i)

WHETHER THE APPELLANT CAN APPROACH UNDER ARTICLE 132 OF

THE INDIAN CONSTITUTION?
It is humbly contended before this Honble Supreme Court that the appeal is
maintainable under Article 132 of the Indian Constitution, 1950 because it lies
jurisdiction of the supreme court in cases involving a substantial question of law as to
the interpretation of the constitution, and the word used in that article are: appeal
from any judgment, decree or final order.

(ii)

WHETHER THE APPELLANT HAS A LOCUS STANDI IN THE PRESENT

CASE?
It is humbly contended before this Honble Supreme Court that the appellant has a
locus standi in the present case because it Air-Jharkhand Public Corporation has used
an absolute excessive delegation of legislative power which directly effect/infringe
the right of Mr. Ahmad Ali who is member of the public corporation.
Memorial On Behalf of AppellantPage 8

2. WHETHER THERE IS AN EXCESSIVE DELEGATION OF LEGISLATIVE

POWER TO AIR JHARKHAND?
It is humbly contended before this Honble Supreme Court that there is an excessive
delegation of legislative power to Air-Jharkhand under the Air-Jharkhand rules, 2004
which was framed by public corporation. But same power has not been provided by the
parliament to Air-Jharkhand under Parent Act. If Air-Jharkhand does any work by using
absolute excessive delegation power under Air-Jharkhand rules, 2004. If it is
contravention to the parent Act and constitution of India then it should be invalid.

ARGUMENTS ADVANCED

1. WHETHER APPEAL IS MAINTAINABLE OR NOT?

(i)

WHETHER THE APPELLANT CAN APPROACH UNDER ARTICLE 132

OF THE INDIAN CONSTITUTION?
It is humbly contended before this Honble Supreme Court that the appeal is
maintainable under Article 132 of the Indian Constitution, 1950 because it is
appellant jurisdiction of Supreme Court in appeals from High Court.
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final
order of a High Court in the territory of India, whether in a civil, criminal or
other proceeding, if the High Court certifies under Article 134A that the case
involves a substantial question of law as the interpretation of this Constitution
(2) Omitted
(3) Where such a certificate is given, any party in the case may appeal to the
Supreme Court on the ground that any such question as aforesaid has been
wrongly decided Explanation For the purposes of this article, the expression
final order includes an order declaring an issue which, if decided in favour of
the appellant, would be sufficient for the final disposal of the case.

Memorial On Behalf of AppellantPage 9

In the case of the Bharat Bank Ltd., Delhi v. Union of India 2 wherein the Supreme
Court held that appeal shall lie to the Supreme Court under article 132 of the
Indian Constitution which deals with jurisdiction of the supreme court in cases
involving a substantial question of law as to the interpretation of the constitution,
and the word used in that article are: appealfrom any judgment, decree or final
order.
Similarly in the case of Pritam Singh v. the State3 wherein the Supreme Court held
that Article 132 applies both to civil and criminal cases and under it an appeal
shall lie to the supreme court from judgment, decree or final order of high court,
whether in civil, criminal or other proceeding, if the high court certifies that the
case involves a substantial question of law as to the interpretation of the
constitution.
In Tarapada De and Ors. v. the State of West Bengal 4 what happened in this case
that Calcutta high court rejected the habeas corpus petition of the appellant. Then
appellant approached the Supreme Court under Article 132 of the Constitution of
India which deals with appellant jurisdiction of the Supreme Court in certain
cases involving a substantial question of law. then court found that this appeal is
maintainable under Article 132 of the Indian Constitution and Supreme Court
entertain the appeal.
In State of J. & K. v. Ganga Singh Thakur 5 it was observed that a substantial
question is raised only where a new interpretation is suggested to a provision in
the constitution.

2 Bharat Bank Ltd., Delhi v. Union of India, AIR 1950 SC 188.

3 Pritam Singh v. the State, AIR 1950 SC 169.
4 Tarapada De and Ors. v. the State of West Bengal, AIR 1951 SC 174.
5 State of J. & K. v. Ganga Singh Thakur, AIR 1960 SC 356.

Memorial On Behalf of AppellantPage 10

In the case of Sir Chunilal Mehta & Sons Ltd. v. the Century Spinning &
Manufacturing Co. Ltd.6 it was held: the proper test for determining whether a
question of law raised in the case is substantial would in our opinion, be whether
it is of general public importance or whether it directly and indirectly and
substantially affects rights of the parties, and if so, whether it is either an open
question in the sense that it is not finally settled by this court or by the privy
council or by the federal court or is not free from difficulty or calls for discussion
of alternative views.

(ii)

WHETHER THE APPELLANT HAS A LOCUS STANDI IN THE

PRESENT CASE?
It is humbly contended before this Honble Court that the appellant has a locus
standi in the present case because it Air-Jharkhand Public Corporation has used an
absolute excessive delegation of legislative power which directly effect/infringe
the right of Mr. Ahmad Ali who is member of the public corporation.
The Supreme Court in Sri Anadi Mukta Sadguru S.M.V.S.J.M.S. trust v. V.R.
Rudani7 wherein it was held that the form of the body concerned is not very much
relevant what is relevant is the nature of the duty imposed on the body. If positive
obligation exists mandamus cannot be denied but such duty must have public
character.
In The state of Orissa v. Madan Gopal Rungta 8, the issuing of writs or the
directions by the high court is founded only on its decision that a right of the
aggrieved party under part III of the constitution has been infringed. It can also
issue writs or give similar directions for any other purpose. The conducting words

6 Sir Chunilal Mehta & Sons Ltd. v. the Century Spinning & Manufacturing Co. Ltd., AIR 1962 SC 1314.
7 Sri Anadi Mukta Sadguru S.M.V.S.J.M.S. trust v. V.R. Rudani, AIR 1989 SC 1607.
8 The state of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12.

Memorial On Behalf of AppellantPage 11

of article 226 have to be read in the context of what precedes the same. Therefore,
the existence of the right is the foundation of the exercise of jurisdiction of the
court under this article.
A person who has been prejudicially affected by an act or omission of an authority
can file a writ petition even though he has no proprietary or even fiduciary interest
in the subject. Mandamus may be issued to compel the authorities to do
something it must be shown that the statute imposes legal duty and the aggrieved
party has a legal right under the statute to enforce its performance.9
In Sharif Ahmad v. H.T. Meerut10 in this case the respondent/ public authority did
not oblige the orders of the tribunal. The petitioner approached the Supreme Court
for enforcement of the orders of the tribunal. The writ of mandamus can be issued
the public authority, which neglected its public duty, and did unconstitutional acts.
In Prem Chand Garg v. Excise Commissioner, U.P.11 the fundamental right to
move this court can therefore be appropriately described as the cornerstone of the
democratic edifice raised by the constitution that is why? It is natural that this
court should regard itself as the protector and guarantor of fundamental rights &
should declare that it cannot consistently with the responsibility laid upon it
refuse to entertain applications seeking protection against infringement of such
rights. In discharging the duties assigned to it this court has to play the role of a
sentinel on the qui vive and it must always regard it as its solemn duty to
protected the said fundamental right zealously & vigilantly.
The fundamental rights of the shareholders as citizens are not lost when they
associate to from a company. They can challenge if the legislative measure
directly touches the company of which the petitioner is a shareholder. A
shareholder is entitled to protection of article 19 of the constitution.12

9 Godde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828.

10 Sharif Ahmad v. H.T. Meerut, AIR 1978 SC 209.
11 Prem Chand Garg v. Excise Commissioner, U.P., AIR 1963 SC 996.
12 R.C. Cooper v. Union of India, AIR 1970 SC 564.

Memorial On Behalf of AppellantPage 12

2. WHETHER THERE IS AN EXCESSIVE DELEGATION OF LEGISLATIVE

POWER TO AIR JHARKHAND?
It is humbly contended before this Honble Supreme Court that there is an excessive
delegation of legislative power to Air-Jharkhand under the Air-Jharkhand rules, 2004
which was framed by public corporation. But same power has not been provided by the
parliament to Air-Jharkhand under Parent Act. If Air-Jharkhand does any work by using
absolute excessive delegation power under Air-Jharkhand rules, 2004. If it is
contravention to the parent Act and constitution of India then it should be invalid.
DOCTRINE OF EXCESSIVE DELEGATION
In the case of Ishwar Singh v. State of Rajasthan13 wherein the word Delegation
implies that powers are committed to another person or body which are as a rule, always
subject to resumption by the power delegating. The word delegate means little more
than an agent. An agent exercises no power of his own but only the power of his
principal. In general, a delegating body will retain not only power to revoke the great but
also power to act concurrently on matters within the area of delegated authority except
insofar as it may already have become bound by an act of its delegated14
The term delegated legislation is used in two senses: (i) the exercises by a subordinate
agency (a delegate of the legislation) of legislative power delegated by the legislation. (ii)
the subsidiary rules themselves which emanate from the subordinate agency as a result of
13 Ishwar Singh v. State of Rajasthan, AIR 2005 SC 773.
14 Battelley v. Finsbury Borough Council, 1958 LGR 165.

Memorial On Behalf of AppellantPage 13

the exercise of power as mentioned in (i). Even when a delegatee exercises its power
relying on or on the basis of its power conferred upon it by the delegator, its act would be
deemed to be that of the principal. It is furthermore a well-settled principal of law that a
delegatee must exercise its jurisdiction within the four corners of its delegation.15
The test for valid delegations of legislative power are (i) legislature cannot efface itself
(ii) legislature cannot delegate the plenary or essential legislative function. (iii) even if
there is delegation parliamentary control over delegated legislation should be a living
continuity as a constitutional necessity.16
In the case of State of Tamil Nadu v. K. Shyam Sunder17 wherein the court held that
legislature has a wide power of delegation. But this however, is subject to one limitation,
namely, it cannot delegate uncontrolled power, the legislature while delegating power is
required to lay down the criteria or standard as to enable the delegatee to act within the
framework of the statute. Delegation is valid only when it is confined to legislative policy
and guidelines18
When legislative power is delegated the power must be exercised within the scope of the
authority conferred by the enabling act. When it exceeds the authority it is ultra virus the
enabling status and is invalid. The efficiency of judicial review in this area depends on
the terms in which legislative power is delegated by the statute. When the delegation
clause is couched is very wide terms there cannot be any effective judicial scrutiny.
Generally, the government is given power to make such rules as appear to it to be
necessary or expedient or for carrying out the purposes of the act.
Here it becomes a hazardous task to determine whether subordinate made in pursuance of
such statutory provisions really falls within the scope of authority. The only test that can
be applied by the courts is to see whether the rules are reasonably related to the

15 Chairman, Indore Vikas Pradhikaran v. Pure Industrial coke & chamicals Ltd., (2007) 8 SCC 705.
16 Avinder Singh v. State, (1979) 1 SCC 137.
17 State of Tamil Nadu v. K. Shyam Sunder, AIR 2011 SC 3470.
18 J.K. Industries Ltd. v. Union of India, (2007) 13 SCC 673.

Memorial On Behalf of AppellantPage 14

achievement of the purposes stated in the act. It is not necessary that a particular subject
be specifically enumerated in the act as falling within the rule making power.
There is no doubt that a statutory corporation can do only those acts as are authorized by
the statute creating it, and that powers of such corporation do not extend beyond it. A
statutory corporation must act within the framework of its constitution. Its express
provisions and necessary implications must at all events be observed scrupulously if it
fails to act in conformity with law, the action is ultra vires and invalid. But it is equally
well settled. The doctrine of ultra vires in relation to the powers of a statutory corporation
must be understood reasonably. Whatever may fairly be regarded as incidental to, or
consequent upon, those things which the legislature has authorized ought not (under
expressly prohibited) to be held by judicial construction, to be ultra vires.19
The statutory corporation being an instrumentality of the state must exercise its power in
just, fair and reasonable manner. Its approach must be beneficial to the general public. It
must act bona fide. Wide power conferred corporations are subject to inherent limitations
that they should be exercised honestly and in good faith.20
In Sale Tax officer v. Abraham21 wherein in spite of the wide terms, in which legislative
power was delegated the rules made by the government was struck down. The
government was authorized to make rules for carrying out the purposes of the act. The
rules made in pursuance of this provision prescribed the last date for falling declaration
forms by dealers from the statute. It was found that only the power to made rules
prescribing that particulars to be included in the forms was delegated. The above rule
prescribing a time limit for filing the form was therefore stuck down as ultra virus the
statute.
According to the doctrine of excessive delegation, if the legislature excessively delegated
its legislative function to any other authority, such delegation will be held
unconstitutional.
19 V.T. Khanzode v. R.B.I., (1982) 2 SCC 7.
20 Mahesh Chandra v. U.P. financial corporation, AIR 1993 SC 935.
21 Sale Tax officer v. Abraham, AIR 1967 SC 1823.

Memorial On Behalf of AppellantPage 15

This doctrine fulfils two objectives (i) it ensures democratic accountability in the laws
through which the people are governed. (ii) Minimum delegation provides the courts with
some discernible standard to judge if the rule/regulation is ultra vires the parent statute.
Whether there is excessive delegation or not, has to be examined in the light of three
broad principles.
(i)
Essential legislative functions to enact laws and to determine legislative policy
(ii)

cannot be delegated.
In the context of modern conditions & complexity of situations, it is not
possible for the legislature to envisage in detail every possibility and make
provision for them. The legislature therefore has to delegate certain function

(iii)

provides it lays down legislature.

If the power is conferred on the executive in a manner which is lawful and
permissible the delegation cannot be held to be excessive merely on the
ground that the legislature could have made more detailed provisions22

The majority view expressed in Gwalior Rayon Co. v. Assistant Commissioner of Sale
Tax23 was reiterated by a five judge bench of the Supreme Court in K.S.E. Board v.
Indian Aluminium24 the court has reiterated the principle of excessive delegation in
Registrar, Co-operative Societies v. K. Kunjabmu25 explaining the principle of
excessive delegation the court has pointed out that the power to legislate carries with
it the power to delegate but excessive delegation may amount to abdication and
delegation unlimited may invite despotism uninhibited thus the following theory has
been evolved. The legislature cannot delegate its essential legislate it must, by laying
down policy and principle and delegate it may, to fill in detail & carry out policy.
A statute challenged on the ground of excessive delegation must be subjected to two
tests.
22 Jyoti Pershad v. Administrator, Union territory of Delhi, AIR 1961 SC 1605.
23 Gwalior Rayon Co. v. Assistant Commissioner of Sale Tax, AIR 1974 SC 1660.
24 K.S.E. Board v. Indian Aluminium, AIR 1976 SC 1031.
25 Registrar, Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 351.

Memorial On Behalf of AppellantPage 16

(i)
(ii)

Whether it delegation essential legislative function, and

Whether the legislature has enunciated its policy and principle for the
guidelines of the executive.26

In Jalan Trading Co.(P.) Ltd. v. Mill Mazdoor Sabha 27 wherein the section 37 of the
payment of Bonus Act, 1965 authorised the Central Government to provide by order
for removal of doubts or difficulties in giving effect to the provisions of the act the
court held that section 37 ultra virus on the ground of excessive delegation and
observed that the act authorized the Government to determine for itself what the
purposes of the act are which in substance would amount to exercise of legislative
power that cannot be delegated. Legislative must retain in its own hands the essential
legislative functions and what can be delegated is the task of subordinate legislation
necessary for implementing the purpose and objects of the act.28
In Hamdard Dawakhana v. Union of India 29 it was probably the first case in which
central act was held ultra vires on the ground of excessive delegation. The Drugs and
Magic Remedies (objectionable Advertisements) Act, 1954 was enacted by
parliament to control advertisement of certain drugs. Section 3 laid down a list of
diseases for which advertisement was prohibited and authorized the central
government to include any other disease in the list. The Supreme Court held section 3
invalid as so criteria, standards or principles had been laid down therein and the
power delegated was unguided and uncontrolled.
In Hansraj L. Chulani v. Bar Council of Maharashtra & Goa30 the state bar council
framed a rule as to right to practise legal profession and disqualified persons if they
26 Vasanti Lal v. State of Bombay, AIR 1961 SC 4.
27 Jalan Trading Co.(P.) Ltd. v. Mill Mazdoor Sabha,AIR 1967 SC 691.
28 Agriculture Market Committee v. Shalimar Chamical, (1997) 5 SCC 516.
29 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
30 Hansraj L. Chulani v. Bar Council of Maharashtra & Goa, AIR 1996 SC 1708.

Memorial On Behalf of AppellantPage 17

were engaged in any other occupation. It was contended by the petitioner who was in
the medical profession that the rule was bad as there was excessive delegation of
legislative function by the legislature. It was held that it has effectuated the object,
purposes and scheme of the act.
In St. John Teachers Training Institute v. National Council for Teacher Education31
wherein the Supreme Court emphasized on the need and necessity of delegated
legislation. It was observed that the legislature cannot possibly foresee every
administrative difficulty that may arise in operating a statute delegated legislation fill
those gap and details rules framed by the executive in exercise of delegated power,
however cannot supplant the law enacted by the legislature but can supplement it.
Delegated legislation made in exercise of power under the parent act is supporting
legislation made in exercise of power under parent act is supporting legislation and
has the force and effect, if validity made, as the act itself.
In M/s Devi Das v. State of Punjab 32 wherein the court held that section 5 of the
Punjab general sales tax Act, 1948, was invalidated since an uncontrolled power was
conferred on the provincial government to levy every year on the taxable turnover of
a dealer a tax at such rates as the said government might direct. Under this section
legislature practically effaced itself in the matter of fixation of rates and it did not
give any guidance either under that section under any provisions of the Act hence the
act is invalid.
In Harak Chand v. Union of India33 wherein a clause in Gold Control Act was
declared invalid on the ground of excessive delegation. Act empowered administrator
to authorize such person as he thinks fit to also exercise all or any powers exercised
by him under the act and different persons may be authorized to perform different
powers reviewing the various provisions of the Act, sections 114(1), 8, 11, 21, 31(3),
31 St. John Teachers Training Institute v. National Council for Teacher Education, (2003) 3 SCC 321.
32 M/s Devi Das v. State of Punjab, AIR 1967 SC 1898.
33 Harak Chand v. Union of India, AIR 1970 SC 1456.

Memorial On Behalf of AppellantPage 18

& 31(4). The court found out that the power conferred on the administrator is
legislative in character extremely wide and suffered from excessive delegation of
legislative power it is now firmly established that excessive delegation of legislative
power is unconstitutional.
Whether a particular legislation suffers from excessive delegation is a question to be
decided with reference to certain factors which may includes:
(i)
(ii)
(iii)
(iv)

Subject matter of law

Provisions of the statute including its preamble
Scheme of law
Factual and circumstantial background in which the law is enacted.34

According to section 30 of the Airport authority of India Act 1994 which defines
delegation of power that the authority may by general or special order in writing,
delegate to chairperson or any other member or any officer of the authority subject to
such conditions & limitations but not excessive power.
In Rajasthan SEB v. Mohan Lal35 the expression state has been liberally construed
by the supreme court and all authorities created by the a statute on which powers
were conferred to carry out governmental or quisi-governmental function were held
to be state.
In Ramana Dayaram Shetty v. International Airport Authority of India 36 and Ajay
Hasia v. Khalid Mujib Sehravardi37 the Supreme Court held that it is immaterial
whether the corporation is created by a statute or under a statute. The test is whether it
is an instrumentality or agency of the government and not as to how it is created. The
inquiry has to be not as to how the juristic person is born but why it has been brought
34 St. John Teachers Training Institute v. National Council for Teacher Education, (2003) 3 SCC 321.
35 Rajasthan SEB v. Mohan Lal, AIR 1967 SC 1857.
36 Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628.
37 Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487.

Memorial On Behalf of AppellantPage 19

into existence. In such case the true owner is the state the real operator is the state and
the effective controller is the state and accountability for its actions to the community
and to parliament is of the state.38
THE DOCTRINE OF NON-DELEGATION
The doctrine of Non-delegation prohibits excessive delegation of discretionary
powers by the congress to federal agencies & the president. The constitutional basis
for the Non-delegation doctrine is the first sentence to Article 1. In Carter v. Carter
Coal Co.39 wherein the court struck down a statute that authorized coal producers to
elect local boards with power to set minimum prices for coal in their districts. The
court rejected the delegation out of hand, characterizing it as legislative delegation in
its most obnoxious from for it is not ever delegation to an official or an official body
In Panama Refining Co. v. Rayans40 wherein the Supreme Court of the United States
had held that the Congress can delegate legislative power to the executive subject to
the conditions that it lays down the policies and established standards while leaving to
the administrative authorities the making of the subordinate rules within the
prescribed.

PRAYER

Wherefore, in the light of facts of the case, issues raised, arguments advanced and
authorities cited, this Court may be pleased to adjudge and declare that

38 Som Prakash Rakhi v. v. Union of India, AIR 1981 SC 212.

39 Carter v. Carter Coal Co., 298 U.S. 238 (1936).
40 Panama Refining Co. v. Rayans, 293 U.S. 388 (1935).

Memorial On Behalf of AppellantPage 20

1. The appeal is maintainable.

2. The Air Jharkhand Rules, 2004 is invalid.
And pass any other order in favour of the Appellant that it may deem fit in the light of
equity, justice and good conscience.

All of which is respectfully submitted.

On behalf of the Appellant

Place: Ranchi
Date: 11thApril, 2016.

Memorial On Behalf of AppellantPage 21