Federation Of Dsidc ... vs Union Of India And Ors.
1993 Latest Caselaw 693 Del

JUDGMENT

B.N. Kirpal, J.

(1) The challenge in this writ petition is to the appointment of Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, by the Ministry of Industry, Union of India.

(2) The petitioners are associations whose members had been allotted sheds by the DSIDC. According to the respondents requisite payments having not been made proceedings were initiated under the Pp Act for eviction of the petitioners. The contention of the petitioners is that under Section 3 of the Pp Act it is only the Ministry of Urban Development, which can appoint Estate Office but in the present case the appointment by the notifications dated 5th January, 1993 and 13th 0ctober, 1977 had been done by the Ministry of Industry with regard to the sheds which are owned/acquired or hired by Dsidc Ltd.

 (3) In support of the aforesaid contention learned counsel for the petitioners submits that under Article 77(3) of the Constitution Allocation of Business Rules had been framed. According to Rule 3 thereof the subjects have been distributed between different departments. Item No.9 in the Schedule reads as follows:-    (9)"The Public Premises (Eviction of Unauthorised Occupants) 1971 (40 of 1971)"  

 (4) The submission, therefore, is that under Section 3 it is only the Ministry of Urban Development which can issue a notification appointing the Estate Officers.   

 (5) The notification which is issued under Section 3 is in the name of the Central Government, duly authenticated by the Under Secretary. In the recital it is stated that the said notification is issued in exercise of the powers conferred by Section 3 of the Pp Act. On the lace of it, therefore, the notification is in the name  ofthe Central Government though it is issued by the Ministry of Industry.   

(6) The Act requires a notification to be issued by the Central Government. On the lace of it this requirement is satisfied when in the impugned notification it is clearly mentioned that the appointment has been made by the Central Government. In our opinion, it is immaterial whether the Ministry from whom the notification emanated was the Ministry of Industry or Ministry of Urban Development as we shall presently see from the facts ofthe present case that such a notification, even on the correct interpretation of the Allocation of Business Rules, could only have been issued by the Ministry of Industry.

(7) Under Article 77(3) the President makes rules for the more convenient transaction of the business of the Government to India, and for allocation amongst Ministries of the said business. What Rule 3 of the Government of India Allocation of Business Rules, 1961 stales is as follows;- "THE distribution of subjects among the Departments shall be as specified in the First Schedule to these Rules and Rules (ii) (iii) and (iv) of these Rules"

(8) The schedule contains are subjects which are distributed. One of the subjects which is distributed and allocated to the Ministry of Urban Development is the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. As we read the rules and the said schedule it appears that the subject of Pp Act is allocated to the Ministry of Urban Development but action under that Act can be taken by the appropriate authority. In other words if the said Act is to undergo a change or is to be amended or repealed, the Ministry concerned would be the Ministry of Urban Development. Where, however, as in the present case, the said Act is made applicable and action has to be taken under that Act then, reference to the Central Government in Section 3 must ipso facto be to the ministry or authority which is concerned with the property.

(9) Mr. Swatanter Kumar has rightly brought to our notice that item No. 1 of Schedule to the Allocation of Business Rules pertaining Ministry of Urban Development clearly states that the said Ministry is concerned with all the lands and buildings of the Union but excepted there from are "(iii) buildings or lands, the construction or acquisition of which has been financed otherwise than from the Civil Works Budget; (III)Buildings or lands, the control of which has at the lime of construction or acquisition or subsequently been permanently made over to other Ministries and Departments."

(10) It is not in dispute that the sheds in question are owned by the respondents and were allotted to the members of the petitioner associations. Therefore, the said sheds are under the control of the Ministry of Industry which is the nodal Ministry as far as Dsidc is concerned. This being so when action has to be taken by the Central Government under Section 3 of the Pp Act it can, most appropriately, be taken by the Ministry of Industry. It is the said Ministry under whose control the public premises are and it will be most logical that the said Ministry takes action under the Pp Act when it is called for.

(11) Learned counsel for the petitioners has sought to place reliance on the judgment of this Court, to which one of us was aparty, in the case of Smt. Dropadi Devi and others v. Union of India and others, .It was, inter-alia, held in that case that Article 77(3) enables the President to make rules for the more convenient transactions and the business of the Government of India and that these provisions were only directory and it was open to the Government to establish, as a question of fact, that an order has been issued by the State Government. The said decision is of no assistance to the petitioners in the present case. In Dropadi Devi's case letters were written by two officers, viz. Shri V. Shankar and Shri M.N. Buch but they were not written' on behalf of the Government and nor in the name of the President and it is in respect thereto that it was observed that evidence should be led to show that these two officers had been duly authorised to take decision on behalf of the Government of India. Such is not the dispute in the present case because the notification appointing the Estate Officer has been issued in the name of the Central Government and is duly authenticated by the Under Secretary to the Government of India.

(12) Similar is the position with regard to the case of Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. etc. v. The District Magistrate, Meerut and others, which has been sought to be relied upon by Shri Malhotra. In that case also there was no order which was passed in the name of the Government or by the President and, in the absence of such an order, the Court had held that it had to be seen whether the persons who wrote the letters had been duly authorised to issue the same.

(13) Reference was also made to the decision of the Supreme Court in the case of the State of Rajasthan v. Dr. A.K-Datta, Air 1981 Sc 20. In that case an officer of the Zoological Survey of India at Jodhpur was proceeded against under the Prevention of Corruption Act and permission was obtained from the Ministry of Home Affairs, Government of India. It was held in that case that because the sanction was not obtained from the appropriate authority, therefore, the same was bad and reference in that case was made to the Allocation of Business Rules. What is important to be seen, however, is that Entry 32A had been introduced in the Allocation of Business Rules relating to Ministry of Home Affairs regarding grant of sanction for prosecution. The note to the Entry 32-A, however, stated that sanction for prosecution shall be accorded by the administrative Ministry. It was, therefore, by the Supreme Court held that as the Ministry of Home Affairs was not the Administrative Ministry of Shri A.K. Datta, therefore, the sanction which was accorded was not valid. No such question arises for consideration in the present case. The property in question does not belong to the Ministry of Urban Development and if the argument of the learned counsel for the petitioners is accepted then in fact, instead of the words "Central Government" the words "Ministry of Urban Development" would have been inserted in Section 3 of the Pp Act.

(14) Lastly our attention was drawn by Shri Malhotra to the case of Jagmal Singh Yadav v. M.Ramayya and others, . The Court held in that case that under Rule 4(c) of the Central Engineering Service, Class Ii, Recruitment Rules the method for recruitment could be approved by the Ministry of Home Affairs and not by any other Ministry. We fail to appreciate as to how this decision can be of any assistance to the petitioners because in the present case as the property is of the Dsidc it is the Ministry of Industry which was competent to issue the impugned notification.

(15) Before concluding, we refer to the decision of the Full Bench of this Court in the case of Zalam Singh and others v. Union of India and others, . The question which arose there was whether the notification which was issued under the Delhi Rent Control Act by the Under Secretary, but not in the name of the President, was valid or not. The Full Bench of this Court observed that all the provisions of Article 77(3) were not mandatory and what has to be seen was whether there has been a substantial compliance with the provisions of the Act or not. Article 77 related to the form in which the executive action is to be expressed arid the notification in that case, which was issued in the name of the Central Government by the Under Secretary, was regarded as sufficient compliance of Article 77. Shri Madan Lokur has also sought to place reliance on the decision of the Supreme Court in the case of A. Sanjeevi Naidu etc. etc. v. State of Madras and another, . In that case under the Allocation of Business Rules of the State of Tamil Nadu Motor Vehicles Act was allocated to the Home Department. On the formation of new Ministry Mr. Karunanidhi was appointed as a Transport Minister but no notification was issued transferring Motor Vehicles Act to the Transport Ministry. Action was taken under the Motor Vehicles Act by the Ministry of Transport and the same was impugned, inter-alia, on the ground that it is the Minister of Home Affairs who had the administrative control of the Motor Vehicles Act. It was held by the Supreme Court that the functions under the Motor Vehicles Act had been allocated by the Governor to the Transport Minister under the Rules and the Secretary of that Ministry had been validly authorised to take action but it was noted as a tact that Motor Vehicles Act itself was allotted to the Ministry of Home. Apply ing this analogy it would follow that action under the Pp Act, concerning property ofthe Dsidc which is under the administrative control of Ministry of Industry, could be taken by the said Ministry just as the functions under the Motor Vehicles Act could be taken by Minister of Transport even though the Act itself, as per the Allocation of Business Rules, had been allocated to the Ministry ofHome.

(16) Before concluding we may take note of the averment of the learned counsel for the respondents that action under the Pp Act, in the present case, had been taken against various persons in the year 1978 and it is only now, after a lapse of a number of years that the present writ petition had been filed. It would appear to us that there may be some merit in this contention but we are not basing our judgment on this.

(17) In our opinion there is no merit in this writ petition and as the Estate Officer had been validly appointed, the petition is dismissed.

(18) Interim orders are vacated.