Enabling statute is a statute that enlarges common law or makes something lawful that may be unlawful without much explanation. The statute which allows the previously forbidden law to be in operation officially is called an enabling statute. Hence enabling statute means ‘A statute that permits or brings into force a prohibited or forbidden law, thereby creating new powers’. Examples of enabling statute include Acts proving compulsory acquisition of land for public benefit; or Section 49 A and Section 49-A(2) of Advocates Act amended by Act 21 of 1964.
Enabling statute creates new agencies and incorporating their purpose and power by defining the rules and formalities. Though the power may differ from one agency to another, there is a possibility to make accurate generalizations about the power of a typical administrative agency.
Principle – if the legislature provides the authority to do something while at the same time grants powers by all the crucial presumptions and information to fulfil all Acts that are necessary to carry out the purpose.
Construction of enabling statute
That is, whenever the legislature grants power to the public at large to do something of public nature and the legislature also grants rights without which the power will be isolated. It is to be noted that the mentioned words within the statute should be compulsorily considered as per the principal where the ‘object of the power’ (which is either increased or introduced) is to put into operation a specified legal right.
Many Acts have compulsory effects just like the Acts which authorize the compulsory acquisition of land for public purposes. Also, the Acts which affect public nuisances have an equivalent compulsory effect.
Likewise, by an Act of Parliament, many other things are often done to an enabling statute which passed down the powers to public bodies to accomplish the Acts which are public with the attitude to satisfy the wants with the facility otherwise the powers so given would be meaningless.
Maxim “Expressio unius est exclusio alterius” in English means “express enactment shuts the door to further implications”. In the other words, we will say that it expresses a particular rule which states that where the legislature expressly lays down, various terms and modes of handling the matter, it excludes any other mode except as specifically authorized. Under certain cases, the words must be read to hide the case.
However, the words so read to hide it by reasonable construction may sometimes point more exactly to a different case. These cases are clearly within the mischief. Thus, it’s important to supply a cloak to the case instead of making it a casus omissus.
When the government of Kerala granted exemption from the operation of the Kerala Building Rules 1984 for the development of a high rise building in Cochin without the advice of greater Cochin Development authority and therefore the Chief Town Planner as provided within the rules, the Supreme Court held that the order was ultra vires.
Ramjiban Gurchait v. State of West Bengal & Ors. AIR 1954 Cal 56, 57 CWN 913
The petitioner owned agricultural lands at Bharatpur within the district of Howrah. he’s a producer as denoted by the order. A notice was served upon him to deliver 769 mounds of paddy to which the petitioner filed an appeal against the directive which was dismissed on technical grounds.
The technical point is unknown and therefore the petitioner has not taken any steps against it. Petitioner argues that on constitutional point by reason which he claims the order to be ultra vires the constitution. Thus, it becomes unnecessary to travel into the petition intimately. According to Petitioner, the aim of this application is that the law applicable is that the Essential Supplies Act 1948 on the idea of which decision was given.
Arguments and judgement
As far as the Essential Supplies Act cares Section (3)(f) authorizes a person to sell the entire or any part of the stock to such people and in such circumstances as laid out in the order. In ‘Atulya Kumar De’ case, it has been acknowledged that the Essential Supplies Act is the “Enabling Statute” which confers powers upon the government to try to do certain things by circulating orders. Thus, the prevailing law is simply an enabling statute conferring power to enact a law or order and such enactment is passed after the constitution. So, it can’t be said that the order passed is exempt from the operation of Article 31(2) as enabling statute is existing law.
Thus, it had been concluded that the application fails and must be dismissed. All the principles and interim orders passed shall even be dismissed. Moreover, the Interim injunction would continue for 3 weeks. an extra stay must be obtained after Appeal Court after three weeks’ period gets over.
Enabling statutes is vital to make sure that provisions are in situ which give the policyand its representatives’ clear legal authority to access facilities and records. When problems with access arise, the enabling statutes are used because of the tools to resolve these issues quickly. Those tools include the authority of the policy or another entity within the state. Thus, to conclude, it is often said that if the subordinate or delegated legislation goes beyond the scope of the authority concerned on the delegate or it’s in conflict with the Parent or enabling clause, it’s called substantive ultra vires.
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Very good article. Liked it more.