Ranawat, J. - (1.) This is an application under Article 226 of the Constitution of India. Petitioners Nos. 1 to 5 were elected members of the Makrana Municipal Board before the Rajasthan Municipalities Act (Act No. 38 of 1959) (hereinafter referred to as 'the Act') came into force. The municipal board that functioned at the time the new elections were held, became "func-tus officio on account of the term of that board having run out. The new board could not be constituted before the Rajasthan Municipalities Act came into force for the reason that two members who had to be nominated before it could function were not so nominated by the Government. After the coming into force of the Rajasthan Municipalities Act of 1959, the Government issued the Rajasthan Municipalities (Transitory Provisions) Second Order, 1959 (Order No. II of 1959), and Section 3 thereof provided as follows: "In cases in which elections to a Municipal authority established under and governed by any repealed law have been held, but such municipal authority has not been completely formed or begun to function before the appointed date, then, notwithstanding anything to the contrary contained in the repealed law or in the Act * * (iv) where any repealed law or an order thereunder fixing the number of members of a Municipal authority contained a provision for the nomination or co-option of some members, the number of seats to be filled up by nomination or co-option may be filled after the appionted date by co-option of one person belonging to the scheduled castes or the scheduled tribes and 2 persons belonging to the female sex if no such person has been returned by election or one such person if only one such person has been returned and the members elected as aforesaid shall forthwith enter upon their duties for the purpose of such co-option in accordance with rules made under the Act, and (v) in either of the cases covered by Sub-clauses (iii) and (iv) of this clause, the provisions contained in Sub-sections (2), (3) and (5) of Section 9 of the Act shall, for the purpose of the complete formation of the Municipal authority concerned, be deemed to be omitted". Under Section 3(iv) and (v), the Sub Divisional Officer, Parbatsar is taking steps for making arrangements for co-option of two members of the Makrana Municipal Board, one from among the Scheduled Castes or the Scheduled Tribes and the other from the female sex. The petitioners have come to this Court against the co-option proceedings under Section 3 (iv) read with Sub-section (v) of the Rajasthan Municipalities (Transitory Provisions) Second Order, 1959, and it is contended on their behalf that (1) Section 301 of the Act is ultra vires and void, and (2) Section 3, Sub-section (iv) of the Rajasthan Municipalities (Transitory Provisions) Second Order of 1959 is inconsistent with the provision of Section 9 of the Act and it is therefore invalid. It is prayed that the Sub Divisional Officer, Prabat-sar should be restrained from acting under Section 3(iv) and (v) of the said Order for the reason that the aforesaid provisions of law under which they are being proceeded with are invalid,
(2.) The learned counsel for the petitioners has referred to the decisions of the Supreme Court in In re Article 143, Constitution of India and Delhi Laws Act (1912) etc., (Special Reference No. 1 of 1951); AIR 1951 SC 332. Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 465, Rajnarain Singh v. Chairman, Patna Administration Committee, Patua, AIR 1954 SC 569 and Milap Chand v. Dwarka Das, AIR 1954 Raj 252. It was urged by the learned counsel that the principles laid down by the aforesaid authorities are that a Legislature is not competent to delegate its essential functions to a subordinate authority, or to the executive, or any other subordinate authority, and as in the instant case the Rajasthan Legislative Assembly has delegated such essential functions by virtue of Section 301 of the Act, the said provision of law is invalid. In the next place, it was contended that as Section 3(iv) of the Order was inconsistent with Section 9 of the Act, it is invalid to the extent of such inconsistency for the reason that the delegated legislation could not over-ride the provision of the main Act under the authority of which such legislation was made.
(3.) Section 301 runs as follows: "301.--Transitory provision. -- For the purpose of facilitating the transition from the provisions ot the laws repealed by Section 2 to those of this Act, the State Government may, by order published in the official Gazette, (a) direct that this Act shall, during such limited period as may be specified in the order, have effect subject to such adaptations, alterations and modifications as may be so specified; (b) give such directions as appear to it to be necessary ior the removal of any difficulty that may arise in enforcing this Act; and (c) make such other temporary provisions for the purpose aforesaid as may be specified in the order: Provided that the State Government shall not exercise the powers conferred by this section after the constitution of the first board under this Act". In order to appreciate the scope of Section 301, it may be useful to refer to Section 2, of the Act which relates to repeal and savings and is as follows: "2. Repeal and Savings.-- On this Act coming into force, the laws and enactments specified in the First Schedule appended to this Act shall be repealed: Provided that:-- (a) such repeal shall not affect the validity of invalidity of anything already done or suffered or any action already taken under any of the said laws or enactments or the rules, bye-laws and regulations thereunder; and (b) all municipal boards, corporations, councils, town boards or other municipal authorities established under any of the said laws or enactments shall be deemed to be municipal boards established under this Act and all municipalities constituted, members nominated, appointed or elected, committees formed, limits defined, appointments, rules, orders and bye-laws made, notifications and notices issued, taxes imposed, contracts entered into and suits and other proceedings instituted under the said laws or enactments or under any laws or enactments thereby repealed shall, so far as may be, be deemed, unless the State Government directs otherwise, to have been respectively constituted, nominated, appointed or elected, formed, defined, made, issued, imposed, entered into and instituted under this Act".;