Jayantilal Amrit Lal Shodhan Vs. F.N. Rana & Ors [1963] INSC 215 (5 November 1963)
05/11/1963 SHAH, J.C.
SHAH, J.C.
GAJENDRAGADKAR, P.B.
SUBBARAO, K.
WANCHOO, K.N.
DAYAL, RAGHUBAR
CITATION: 1964 AIR 648 1964 SCR (5) 294
CITATOR INFO :
F 1965 SC1619 (5) RF 1967 SC 669 (25) D 1971 SC 530 (96) R 1971 SC1547 (7,8) RF 1973 SC1461 (1041) E&D 1974 SC2192 (41,42,43,46,141,142,143) RF 1975 SC2299 (46,631) D 1982 SC 149 (709) RF 1987 SC2106 (2)
ACT:
Constitution of India, Arts. 258(1), 73(1)-Notification by President entrusting functions to State Officer-If has force of law-"Save as expressly provided in the Constitution", interpretation of-Delegation of powers by State officer"Enquiry and Report by Collector"Nature of functionsBombay Reorganisation Act,1960.....(11 of 1960),ss.2(d), 87-Land Acquisition Act, 1894 (1 of 1894), ss. 4, 5A, 6.
HEADNOTE:
The President of India issued on July 24, 1959, a notification under Art. 258(1) of the Constitution entrusting with the consent of the Government of Bombay to the Commissioners of Divisions in the State of Bombay the functions of the Central Government under the Act in relation to the acquisition of land for the purposes of the Union. By the Bombay Reorganisation Act 11 of 1960, two new states were constituted and the Baroda division was allotted to the State of Gujarat. Purporting to exerciser he powers entrusted by the notification issued by the President on July 24, 1959, the Commissioner of Baroda Division notified under s. 4(1) of the Land Acquisition Act 1 of 1894, the appellants' land as being needed for a public purpose, and authorised the Special Land Acquisition Officer, Ahmadabad to perform the functions of the Collector under the Act.
After considering the objections raised by the appellant to the proposed acquisition, the Special Land Acquisition Officer submitted his report to the Commissioner, who issued the declaration under s. 6(1) of the Act. The appellant thereupon moved the High Court of Gujarat under Arts. 226 and 227 of the Constitution for a writ but his petition was dismissed. The case of the appellant was that (1) the President's notification under Art. 258(1) was ineffective after the partition since the consent of the Government of the newly formed State of Gujarat to the entrustment of functions to its officers had not been obtained as required by Art. 258(1); (2) the proceeding under s. 5A of the Act being quasi-judicial in character, authority to make a report there under could not be delegated by the Commissioner nor could he consider such a report when made.
Held:(i) (per Gajendragadkar, Shah and Dayal JJ.) Article 258(1) of the Constitution in effect enables the President to do by notification what the Legislature could do by legislation, namely, to entrust functions relating to matters to which executive power of the Union extends to officers named in the notification. Such notification, therefore, amends the Act in respect of which it is made by substituting as it were the words of the notification therein.
295 So interpreted it cannot be said that the notification of the President had not the force of law within the meaning of s. 87 read with s. 2(d) of the Bombay Reorganization Act.
It cannot be assumed simply because the President is the executive head of the Union that the exercise by him of his power under Art. 258(1) has not the force of law.
The Edward Mills Co. Ltd. v. State of Ajmer, [1955] 1 S.C.R. 735, relied on.
Chanabasappa Shivappa v. Gurppadappa Murigappa, I.L.R. 1958 Mysore 48, approved.
Article 258(1) empowers the President to entrust to the State only such executive functions as are vested in the Union and are exercisable by him on its behalf; it does not authorise him to entrust such powers as are expressly vested in the President by the Constitution and do not, therefore fall within the ambit of Art. 258(1).
The executive power of the Union extends to all matters in respect of which Parliament has power to make law and in respect of matters to which the power of Parliament extends.
The expression "save as expressly provided in the Constitution" in the proviso to Art. 73(1) is not susceptible of a limited interpretation. A constitutional provision authorising the Union to exercise its power over matters in respect of which the State Legislature has also power to make law, has operation notwithstanding the limitation enacted in the proviso.
It is well settled that functions which do not fall strictly within the field legislative or judicial, must fall in the residuary class executive and be regarded as such.
(ii)The Indian Constitution does not make a rigid division of functions and although it is possible to characterise with precision that an agency of the State is executive, legislative or judicial, it cannot be said that a particular function exercised by any individual agency necessarily bears the character of the agency exercising the functions.
Rai Sahib Ram Jawaya Kapur v. State of punjab, [1955] 2 S.C.R. 225 and Harinagar Sugar Mills Ltd. v. Shyamsundar, [1962] 2 S.C.R. 339, referred to.
The enquiry made by the Collector is not a judicial or quasijudicial enquiry and the report made by the Collector under s. 5A of the Land Acquisition Act is administrative.
The Commissioner therefore in appointing the Additional Land Acquisition Officer as the Collector or acting on his report in pursuance of the functions entrusted to him by the notification acted within the authority conferred on him.
Per Subba Rao and Wanchoo, JJ.-Article 258(1) interpreted in the light of the scheme and setting in which it appears and the language it uses, clearly indicates that in giving the President the 296 power to entrust his functions, it is contemplating the entrustment of the executive functions of the Union only and no other. The 'functions' occurring in the Article, even if not expressly qualified by the word 'executive', must in the context mean functions of the same nature as the executive power of the Union.
The words 'entrust functions' and 'with the consent of indicate that in entrusting his functions the President is creating an agency which is more in consonance with carrying out the executive power of the Union.
Article 258(1) is, therefore, capable of one meaning, viz., that it enables the President to entrust the State Government or its officers, with its consent, to carry out functions which appertain to the executive power of the Union vesting in him and no other kind of power. It delimits not merely the field which ordinarily must be List I of the Seventh Schedule but also the nature of the functions which must be executive.
Amir Khan v. State, I.L.R. [1962] 2 All. 310, disapproved.
The basic concept of law is that it should consist of a body of rules which govern the conduct of persons forming the community in which it is enforced and which that community enforces through necessary machinery.
So judged, the notification issued by the President under Art. 258(1) of the Constitution has not the force of law within the meaning of ss. 2(d) and 87 of the Bombay Reorganisation Act, 1960. It is merely an executive order with the authority of law behind. In order that the notification or order may have the force of law it has to contain a rule or body of rules regulating the conduct of a person or persons that can be enforced in a court of law, having been passed by a body authorised to do so.
'Authority of law' must be distinguished from 'the force of law' and every order that has the authority of law behind it would not be one having the force of law unless it complies with the basic concept of law. An order having the authority of law behind it may be recognised by courts but unless it prescribes a rule of conduct which a person or persons must obey there can be no question of its being enforced by a court of law or other authority.
It is not correct to say that when the Government names the authority Which will make the rules, its order has the force of law. In so naming the Government performs an executive function.
The notification of the President under Art. 258(1) is an executive order which the courts must recognise and an order of the Commissioner of a Division in pursuance of it will have the same effect as the order of the Central Government.
But it cannot be said that a notification of the President under Art. 258(1) effects an amendment of the law in connection with which the order is 297 made. It was therefore, not correct to say that the definition of appropriate Governments s. 2(ee) of the act was amended because of the notification in question.
The Edard Mills Co. Ltd. v. State of Ajmer, [19551 1 S.C.R.
735, distinguished.
Madhubhai Amathalal Gandhi v. Union of India, [1961] 1 S.C.R. 191, Public Prosecutor v. Illur Thippayya, I.L.R.
[19491 Mad. 371, King Emperor v. Abdul Hamil, (1923) I.L.R.
11 Pat. 134 and Ramendrachandra Ray v. Emperor, (1931) I.L.R. XVIII Cal. 1303, held inapplicable.
State of Bombay v. F.N. Balsara, [1951] S.C.R. 682, considered.
Chanabassapa Shivappa Tori v. Gurupadappa Murgeppa Hanji, I.L.R. [19581 Mys. 48 and Haji K.K. Modu v. Food Inspector Kozhikode, I.L.R. [1961] Kerala 639, doubted.
The notification not being law was not saved under s. 87 and the Commissioner of Baroda Division, therefore, had no power tact under the notification in question since it had not the consent of the State of Gujarat and his notifications for acquisition of the property must be struck down.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 104 of 1963.
Appeal from the judgment and order dated September 14, 1962, of the Gujarat High Court in Special Civil Application No. 145 of 1961.
G.S. Pathak, G. Dutta, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant.
C.K. Daphtary, Attorney-General, N.S. Bindra and R.H. Dhebar, for the respondents.
November 5, 1963. The Judgment of P.B. Gajendragadkar, J.C. Shah and Raghubar Dayal JJ. was delivered by Shah J. The dissenting Opinion of K.N. Wanchoo and Subba Rao JJ. was delivered by Wanchoo J.
SHAH J.-By notification published on September 1, 1960 under s. 4(1) of the Land Acquisition Act 1 of 1894, the Commissioner, Baroda Division, State of Gujarat, exercising functions entrusted to him under a notification dated July 24, 1959, issued by the President, under Art. 258(1) of the Constitution, notified that a piece of land Part of Final Plot No. 686, Ellis 298 Bridge Town Planning Scheme, belonging to the appellant was likely to be needed for a public purpose viz., construction of a Telephone Exchange Building in Ellis Bridge, Ahmadabad.
Notice was thereafter served by the Additional Special Land Acquisition Officer, Ahmadabad (who was appointed by the order of the Commissioner to perform the functions of a Collector), upon the appellant under s. 5A of the Act inviting objections to the acquisition of the land. The appellant filed objections to the proposed acquisition. The Additional Special Land Acquisition Officer submitted his report to the Commissioner, who issued a notification dated January 11, 1961, under s. 6(1) of the Land Acquisition Act, declaring that the land notified under the earlier notification was required for the public purpose specified in col. 4 of the schedule and that the Additional Special Land Acquisition Officer, Ahmadabad, was appointed under cl.
(e) of s. 3 to perform the functions of the Collector for all proceedings to be taken in respect of the land and to take order under s. 7 of the Act for acquisition of the land.
The appellant then moved the High Court of Gujarat under Arts. 226 and 227 of the Constitution for a writ of mandanius or other appropriate write setting aside the notifications dated September 1, 1960, and January 11, 1961, and the proceedings under s. 5A of the Land Acquisition Act,1 of 1894, held in respect of the land of the appellant and the decision of the Commissioner Baroda Division, and for a writ setting aside the notification dated January 19,1961, under s. 6(1) of the Land Acquisition Act and for interim relief. This petition was dismissed by the High Court. With certificate of fitness under Arts. 132(1) and 133 (1)(c) of the Constitution granted by the High Court, this appeal has been preferred.
In this appeal counsel for the appellant has raised two contentions:(1) That the Commissioner had in the events that had happened no power to issue the notifications under ss. 4 and 6 of the 299 Land Acquisition Act, 1 of 1894, purporting to act upon the notification issued by the President-on July 24, 1959, under Art. 258(1) of the Constitution entrusting the functions of the Union Government relating to acquisition of land to the Commissioners of Divisions in the State of Bombay, because those functions could not be performed after the State of Bombay ceased to exist, and the State of Gujarat came into existence, and the consent of the Government of the latter State to the entrustment of functions to its officers had not been obtained; and (2) that the proceeding under s. 5A of the Land Acquisition Act being quasi-judicial, authority to make a report under that section could not be delegated by the Commissioner, and that the report made by the Additional Special Land Acquisition Officer could not in any event be considered by the Commissioner.
It may be useful to set out certain statutory provisions in the context of the relevant constitutional set up. By the Constitution as amended by the Seventh Constitutional Amendment Act, 1956, legislative power in respect of acquisition and requisitioning of report is vested. under entry 42 in the Concurrent List in the Union Parliament and the State Legislatures. But by virtue of Art. 372, the Land Acquisition Act 1 of 1894 relating to compulsory acquisition of land for public purposes continues to remain in force.
The Land Acquisition Act, 1 of 1894, authorises the appropriate Government by s. 4(1) to publish the preliminary notification that land in any locality is likely to be needed for any public purpose, and upon the publication of such a notification the officers either generally or specially authorised by the appropriate Government in that behalf are clothed with authority, among other, to enter upon and survey the land and to do all acts necessary to ascertain whether the land is adapted for the purpose, to set out the boundaries by placing marks and cutting 300 trenches etc. The expression "appropriate Government" is defined by cl. (ee) of s. 3 in relation to acquisition of land for the purposes of the Union, the Central Government, and in relation to acquisition of land for any other purposes, the State Government. Any person interested in any land notified under s. 4(1) may within thirty days after the issue of the notification object in writing to the acquisition of the land or of any land in the locality, as the case may be. The Collector must give to the objector an opportunity to be heard and after hearing such objection and making such further inquiry, if any, as he thinks necessary, he has to submit the case to the appropriate Government with a report containing his recommendations on the objections.
The decision of the appropriate Government on the report is made final by sub-s. (2) of s. 5A. The expression "Collector" is defined in s. 3(c) as meaning the Collector of a district, and includes a Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under the Act. By s. 6 the appropriate Government is authorised to make a declaration, if the appropriate Government is satisfied after considering the report under s. 5A sub-s. (2) that any particular land is needed for a public purpose. The declaration so made is by sub-s. (3) of s. 6 conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be. By s. 7 the appropriate Government or an officer appointed by the appropriate Government in that behalf, may direct the Collector to take order for the acquisition of the land declared to be needed and the Collector then causes public notice to be given informing the parties concerned that the Government intends to take possession of the land and that claims to compensation for all interests in such land may be made to him. He then holds an inquiry into the nature of the interest of the person claiming compensation, and the objections to the measurement of the land to be acquired and to make an award setting out the true area of the land, the compensation which in his opinion should 301 be allowed for the land, and the apportionment of compensation among persons known or believed to be interested of whose claims he has information: (ss. 9 & 1 1). It is clear from this brief resume that where land is acquired for the purposes of the Central Government, notification under Ss. 4 and 6 may be issued by the Central Government and inquiries may be made under ss. 5A and 9 and compensation awarded by an Officer designated by the Act as the Collector, who in the case of acquisition for the purposes of the Union would normally be an officer specially appointed in that behalf by that Government.
In exercise of the powers conferred by Art. 258 of the Constitution the President of India on July 24, 1959, issued a notification entrusting with the consent of the State Government of Bombay, to the Commissioners of Divisions in the State of Bombay, the functions of the Central Government under the land Acquisition Act 1 of 1894, in relation to acquisition of land for the purpose of the Union within the limits of the territorial jurisdiction of the said Commissioners subject to the same control by the Government of Bombay as is from time to time exercisable by that Government in relation to acquisition of land for the purpose of the State. At the date of the notification the territory which now forms the State of Gujarat and in which the land in dispute is situate was part of the State of Bombay, but on May 1, 1960,-----called the appointed day-as a result of the reorganisation of the State of Bombay under the Bombay Reorganisation Act, 1960, out of the territory of that State, two States were carved out-the State of Maharashtra and the State of Gujarat, and the territory covering the Baroda Division was allotted to the State of Gujarat. To ensure a smooth bifurcation of the State of Bombay, provisions relating to the continuance in office of the officers in the same posts which they occupied before the appointed day, and maintaining the territorial extent of laws were enacted. Section 82 of the Bombay Reorganisation Act, 1960, enacted that every person who, imme302 diately before the appointed day, is holding or discharging the duties of any post or office in connection with the affairs of the State of Bombay in any area which on that day falls within the State of Maharashtra or Gujarat shall, subject to an order by a competent authority, continue to hold the same post or office in that State and shall be deemed, as from that day, to have been duly appointed to the post or office by the Government of, or other appropriate authority in that State. By s. 87 provision was made for maintaining the territorial extent of the laws even after the appointed day. It was enacted that provisions of' Part 11 (i.e. provisions relating to the reorganisation of Bombay State into two States) shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Bombay shall, untill otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. By s. 2(d) of the Bombay Reorganisation Act, 1960, the expression "law" includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the State of Bombay.
The notification issued by the President of India on July 24, 1959, under Art. 258(1) in terms entrusted certain functions under the Land Acquisition Act to the Commissioners of Divisions in the State of Bombay and it was recited therein that the consent to such entrustment of the State Government of Bombay had been obtained. It is common ground that before the date of the notification issued by the Commissioner, Baroda Division, who was then functioning as an officer of the State of Gujarat, under s. 4 of the Land Acquisition Act no order expressly entrusting the functions of the Union Government under the Land Acquisition Act to any officer in the 303 State of Gujarat was issued by the President, and the authority of the Commissioner to notify for acquisition of the land of the appellant was sought to be derived solely from ss. 82 and 87 of the Bombay Reorganisation Act.
The appellant contended that the power exercisable by the President being executive in character, the functions which may be entrusted to a State Government or to an officer of that State under Art. 258(1) are executive, and entrustment of such executive authority not being "law" within the meaning of S. 87 of the Bombay Reorganisation Act, the Commissioners of the new State of Gujarat after May 1, 1960, were incompetent, by virtue of the Presidential notification, to exercise the functions of the Union Government under the Land Acquisition Act. Support to this plea was sought to be derived from the division of part XI of the Constitution into Ch. 1 containing Arts. 245 to 255 dealing with distribution of legislative powers and Ch. 11 containing Arts. 256 to 261 dealing with "administrative relations between the States", and it was submitted that Art. 258, occurring as it does in Ch. 11 of Part XI, must be deemed to deal with matters administrative or executive and not legislative. Founding the argument upon the title of Ch. 11 and the character of the two preceding Arts. 256 and 257 dealing with the exercise of the executive power of the State so as to ensure compliance with the laws made by Parliament, and in a manner so as not to impede or prejudice the exercise of the executive power of the Union which extends to the giving to the State Governments directions as may be necessary for that purpose, it was claimed that Art.
258 deals with the entrustment of executive functions and that entrustment of executive functions by notification issued by the President cannot amount to law, within the meaning of s. 87 of the Bombay Reorganisation Act.
The plea about the placing of Art. 258 in Ch. 11 and the character of the two preceding Articles as indicative of the character of the powers conferred 304 by Art. 258(1) is not at all decisive: for cl. (2) of Art.
258, and cl. (3) of Art. 261, which occur in Ch. 11, deal with matters legislative and judicial. At this stage Art.
258 may be set out:
"(1) Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.
(2)..A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof.
(3) Where by virtue of this article powers and duties have been conferred or imposed upon a State or officers or authorities thereof, there shall be paid by the Government of India to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of any " extra costs of administration incurred by the State in connection with the exercise of those powers and duties." By the first clause, the President is authorised to entrust with the consent of the State Government, to that Government or its officers functions in relation to any matter to which the executive power of the Union extends. Clause (2) deals with the exercise of legislative authority of Parliament in matters exclusively within its competence to confer powers and impose duties upon the State or officers and authorities thereof. Clause (3) provides for payment of sums determined in the manner prescribed by the Union for the burden of extra costs incurred by the State 305 in connection with the performance of duties and exercise of powers conferred or imposed by virtue of Art. 258.
The High Court held that the entrustment of functions under Art. 258(1) did not fall within the executive power of the Union. In the view of the High Court functions which were not judicial or legislative would not necessarily be regarded as executive, and that certain functions which did not fall within the three recognised categorieslegislative, judicial and executive, may be placed in the category of miscellaneous functions. But it is now well settled that functions which do not fall strictly within the field legislative or judicial, fall in the residuary class and must be regarded as executive.
In Halsbury's Laws of England, 3rd Edn. Vol. 7, Art. 409 p.
192 it is observed:
"Executive Functions are incapable of Comprehensive definition, for they are merely the residue of the functions of government after legislative and judicial functions have been taken away. They include, in addition to the execution of the laws, the maintenance "of public order, the management of Crown property and nationalised industries and services, the direction of foreign policy, the conduct of military operations, and the provision or supervision of such services as education, public health, transport, and state assistance and insurance." Similarly in Wade and Phillips, Constitutional Law, 6th Edn, at p. 16 it is observed:
"It is customary to divide functions of government into three classes, legislative, executive (or administrative) and judicial." In Rai Sahib Ram Jawaya Kapur v. The State of punjab(1) in dealing with the question whether publishing, printing and selling of text books for the use of students may be regarded as an executive function of the State (1) [1955]2 S.C.R. 225.
1/SCI/64-20 306 Government, Mukherjea C.J., speaking for the Court observed:
"It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away." It cannot however be assumed that the legislative functions are exclusively performed by the Legislature, executive functions by the executive and judicial functions by the judiciary alone. The Constitution has not made an absolute or rigid division of functions between the three agencies of the State. To the executive, exercise of functions legislative or judicial are often entrusted. For instance power to frame rules, regulations and notifications which are essentially legislative in character is frequently entrusted to the executive. Similarly judicial authority is also entrusted by legislation to the executive authority:
Harinagar Sugar Mills Ltd. v. Shyamsundar(1). In the performance of the executive functions, public authorities issue orders which are not far removed from legislation and make decisions affecting the personal and proprietary rights of individuals which are quasi-judicial in character. In addition to these quasi-judicial, and quasi-legislative functions, the executive has also been empowered by statute to exercise functions which are legislative and judicial in character, and in certain instances, powers are exercised which appear to partake at the same moment of legislative, executive and judicial characteristics. In the complexity of problems which modern governments have to face and the plethora of parliamentary business to which it inevitably leads, it becomes necessary that the executive should often exercise powers of subordinate legislation: Halsbury's Laws of England, Vol. 7, Art. 409. It is indeed possible to characterise with precision that an agency of the State is executive, legislative or judicial, but it cannot be predicated (1) [1962] 2 S.C.R. 339.
307 that a particular function exercised by any individual agency is necessarily of the character which. the agency bears.
But it is not necessary to dilate upon this matter in detail. For the purpose of this case it would serve no useful purpose to decide whether under Art. 258(1) by a Presidential notification only executive functions of the Central Government may be entrusted to the State or to an officer of the State. By the notification in question only "the functions of the Central Government under the Land Acquisition Act 1 of 1894, in relation to acquisition of land for the purpose of the Union" have been entrusted to the Commissioners of Divisions. The power exercisable by the appropriate Government under s. 55 of the Land Acquisition Act to frame Rules under the Act has not been entrusted to the Commissioner. Whether such a function can be entrusted does not call for examination in this case. An argument advanced at the Bar which proceeded upon an erroneous premise about the field in which Art. 258(1) operates may however be noticed. That clause enables the President to entrust to the State the functions which are vested in the Union, and which are exercisable by the President on behalf of the Union: it does not authorise the President to entrust to any other person or body the powers and functions with which he is by the express provisions of the Constitution as President invested. The power to promulgate Ordinances under Art. 123; to suspend the provisions of Arts. 268 to 279 during an emergency; to declare failure of the Constitutional machinery in States under Art. 356; to declare a financial emergency under Art. 360; to make rules regulating the recruitment and conditions of service of persons appointed to posts and services in connection with the affairs of the Union under Art. 309-to enumerate a few out of the various powers-are not powers of the Union Government; these are powers vested in the President by the Constitution and are incapable of being delegated or entrusted to any other body or authority 308 under Art. 258(1). The plea that the very nature of these powers is such that they could not be intended to be entrusted under Art. 258(1) to the State or officer of the State, and therefore that clause must have a limited content, proceeds upon an obvious fallacy. Those powers cannot be delegated under Art. 258(1) because they are not the powers of the Union, and not because of their special character. There is a vast array of other powers exercisable by the President-to mention only a few-appointment of Judges : Arts. 124 & 217, appointment of Committees of Official Languages Act: Art. 344, appointment of Commissions to investigate conditions of backward classes:
Art. 340, appointment of Special Officer for Scheduled Castes and Tribes: Art. 338, exercise of his pleasure to terminate employment: Art. 310, declaration that in the interest of the security of the State it is not expedient to give to a public servant sought to be dismissed an opportunity contemplated by Art. 311(2)-these are executive powers of the President and may not be delegated or entrusted to another body or officer because they do not fall within Art. 258.
The question which must be considered is whether the notification issued by the President is law within the meaning of s. 87 read with s. 2(d) of the Bombay Reorganisation Act, 11 of 1960. It is necessary in the first instance carefully to analyze the three stages of the constitutional process leading to the ultimate exercise of function of the Union Government, by the State or an officer of the State to whom the function is entrusted. The three stages are(i) conferment of power upon the President as the bead of the Union to exercise the functions of the Union;
(ii) entrustment of the function by the President to the State Government or an officer of the State Government;
(iii)exercise of the function by the State or its officer, on behalf of the Union.
309 By Art. 258(1) the President as the head of the Union is competent to entrust functions in relation to any matter to which the executive power of the Union extends to any State Government, or officer of that Government. These are functions of the Union and not of the President. There is no doubt that the investment of power or authority upon the President is part of the Constitution and has necessarily the force of law. There is however controversy between the parties about the true character of the entrustment of the functions by the President. The character of the exercise of the function so entrusted must depend upon the field in which it operates and its impact upon the citizens' rights.
The President is authorised by Art. 258(1) to entrust functions with which the Union Government is invested, provided the functions are in relation to any matter to which the executive power of the Union extends. By virtue of Art. 367, the General Clauses Act, 1897, applies to the interpretation of the Constitution and s. (8) defines "Central Government" by cl. (b) in relation to anything done or to be done after the commencement of the Constitution, as meaning the President and includes in relation to functions entrusted under cl. (1) of Art. 258 of the Constitution to the Government of a State, the State Government acting within the scope of the authority given to it under that clause. By Art. 53 the executive power of the Union is vested in the President and is exercisable by him either directly or through officers subordinate to him in accordance with the Constitution and the executive power of the Union by Art. 73 extends subject to the provisions of the Constitution:
(a)to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and Jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreements:
310 Provided that the executive power referred to in sub-cl. (a) shall not, save as expressly provided in the Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. Prima facie, the executive power of the Union extends to all matters with respect to which Parliament has power to make laws and in respect of matters to which the power of the Parliament extends. It was claimed that by the use of the expression "save as expressly provided in the Constitution" it was intended that unless a provision in the Constitution expressly enacts that the executive power of' the Union shall, within the meaning of Art. 73(1) proviso, extend to a matter in respect of which the Legislature of a State has also power to make laws, that provision cannot exclude the operation of the proviso to Art. 73(1). But the expression " save as expressly provided in the Constitution" is not susceptible of that limited interpretation. A provision in the Constitution conferring authority upon the Union to exercise its powers in matters with respect to which the Legislature of the State has also power to make laws, operates notwithstanding the limitation enacted by the proviso. Article 298, which, inter alia, extends the power of the Union to the "acquisition" of property, is one such provision. Our attention has not been invited to any provision which makes an enactment of the nature suggested by counsel for the appellant excluding the operation of the proviso to Art.
73(1). Articles 353, 360(3), 339(2), 256 and 257 on which reliance was placed, merely enact provisions in the Constitution for giving directions to the State Governments in respect of certain specified matters or purposes. The form in which these provisions are couched do not expressly provide that within the field of their operation Art. 73(1) proviso will not apply. The language used, on the other hand, supports the view that power is conferred upon the Union to do certain things falling within the limits of the executive power, even though normally the power in respect of that matter may be exercised by the State Legislature 311 by virtue of the legislative entry to which it relates. It is therefore open to the President, subject to the proviso to cl. (1) of Art. 73, with the consent of the State Government, to entrust executive power of the Union relating to acquisition of land either to the State or any officers of the State.
We are in this appeal not concerned to ascertain whether the exercise of powers entrusted to the State or its officers has the force of law. We are directly concerned with the nature of the power exercised by the President under Art.
258(1) entrusting functions to the State or its officers.
The President is indisputably the executive bead of the Union, but it cannot be assumed on that account that the exercise of power by him under Art. 258(1) cannot have the effect of law within the meaning of s. 87 of the Bombay Reorganisation Act. By the notification dated July 24, 1959, issued by the President, power was entrusted to the Commissioner, Baroda Division, in respect of matters relating to acquisition of land under the Land Acquisition Act, 1894. By item 42, List 111, the subject of acquisition of property falls within the Concurrent List and the Union Parliament has power to legislate in respect of acquisition of property for the purpose of the Union, and by virtue of Art. 73 (1)(a) the executive power of the Union extends to the acquisition of property for the Union. By Art. 298 of the Constitution the executive power of the Union extends to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose. The expression "acquisition, holding and disposal of property" would, in our judgment, include compulsory acquisition of property. That is a provision in the Constitution which within the meaning of the proviso to Art. 73(1) expressly provides that the Parliament may acquire property for the Union and consequently executive power of the Union in relation to compulsory acquisition of property is saved thereby, power of the State to acquire land notwithstanding.
312 In this background we may consider the effect of the Presidential notification. It cannot be and has not been denied that it was open to the Legislature by making an express provision in the Act to entrust the functions of the Central Government that is to confer powers and impose duties under Art. 258(2) in relation to matters under ss. 4, 5A, 7, 9 and 11 and related sections to Commissioners of Divisions in the State. Such entrustment of power would not be open to challenge on the round that it was unauthorised.
If entrusted by enactment, it would have the force of law.
It was open to the Parliament by appropriate legislation incorporated in the Land Acquisition Act or otherwise to provide that the power to issue notifications under ss. 4 & 6 of the Land Acquisition Act, and to appoint the Collector, be exercised by an officer to be named by the appropriate Government. Issue of a notification by the appropriate Government designating the officer to exercise the powers would unquestionably have the force of law, within the meaning of s. 2(d). Instead of making detailed provisions and cataloging the entrustment of functions in the different statutes which may be entrusted to the authorities of the State by the exercise of legislative power, the Constitution has invested the President with authority to entrust the functions to the Government of the State or their officers.
The effect of Art. 258(1) is merely to make a blanket provision enabling the President by notification to exercise the power which the Legislature could exercise by legislation, to entrust functions to the officers to be specified in that behalf by the President and subject to the conditions prescribed thereby. By the entrustment of powers under the statute, the notification merely authorises the State or an officer of the State in the circumstances and within the limits prescribed to exercise the specified functions. Effect of the Presidential notification is that, wherever the expression "appropriate Government" occurs in the Act in relation to provisions for acquisition of land for the purposes of the Union, the words "appropriate Government or the Commis313 sioner of the Division having territorial jurisdiction over the area in which the land is situate", were deemed to be substituted. In other words, by the issue of the Presidential notification, the Land Acquisition Act must be deemed pro tanto amended. It would be difficult to regard such an amendment as not having the force of law.
In this connection we may refer to the decision of this Court in The Edward Mills Company Ltd. v. The State of Ajimer(1), which illustrates the view which we have expressed. it was held in the Edward Mills' case(1) that an order made under s. 94(3) of the Government of India Act, 1935, was, notwithstanding the repeal of the Government of India Act, 1935, by Art. 395 of the Constitution, law in force. By s. 94(3) of the Government of India Act, 1935. a Chief Commissioner's Province had to be administered by the Governor-General acting to such extent as he thinks fit through the Chief Commissioner to be appointed by him in his discretion. On March 16, 1949, the Central Government issued a notification in exercise of its powers under s.
94(3) of the Government of India Act, 1935, directing that the functions of the appropriate Government under the Minimum Wages Act, 11 at 1948, would in respect of every Chief Commissioner's Province be exercised by the Chief Commissioner. Alter the commencement of the Constitution the Chief Commissioner of Ajmer purporting to act as the appropriate Government published a notification in terms of s. 27 of the Act of his intention to include "employment in the textile mills" as an additional item in Part 1 of the Schedule, and issued the final notification directing that "the employment in textile industry" be added in Part 1 of the schedule. The validity of the orders of the Chief Commissioner was challenged on the ground, among others, that the order of the Governor-General under s. 94(3) of the Government of India Act was not "law in force" within the meaning of Art. 372 of the Constitution. It was urged that without delegation of fresh authority by the President under (1) [1955] 1 S.C.R. 735.
314 Art. 239 of the Constitution, the Chief Commissioner of Ajmer was not competent, after the enactment of the Constitution, to function as tile appropriate Government under the Minimum Wages Act and therefore all steps taken by the Chief Commissioner under the provisions of the Act including the issue of the final notification fixing the minimum rates of wages for the employment in the textile mills in the State of Ajmer was illegal and ultra vires.
The question which therefore fell to be determined in the Edward Mills' case(,) was whether the order made by the Central Government under s. 94(3) of the Government of India Act, 1935, could be regarded as "law in force" within the meaning of Art. 372 of the Constitution. It was urged that an order may fall within the definition of existing law but it cannot be included within the expression "law in force" in Art. 372 of the Constitution. Mukherjea J., speaking for the Court in that case observed that there was no distinction between the expression "existing law" used in Art.
366(1) and the expression "law in force" occurring in Art.
372 of the Constitution, that the words "law in force" as used in Art. 372 are wide enough to include not merely a legislative enactment but also a regulation or order which haS the force of law, and that an order made by the Governors-General under s. 94(3) investing the Chief Commissioner with authority to administer a province is really in the nature of a legislative provision, which defines the rights and powers of the Chief Commissioner in respect of that province falls within the purview of Art.
372 of the Constitution and being "law in force" immediately before the commencement of the Constitution continues to remain in force under cl. (1) of the Article. In our view, the Edward Mills' case( ) strongly supports the conclusion that the notification issued by the President conferring authority upon the Commissioner to exercise the powers of the appropriate Government in the matter of land acquisition under the Land Acquisition Act has the force of law because even though issued by an executive authority, the Courts are, if challenged, bound to recognise and give effect to the authority conferred by the notification. We see no distinction in principle between the notification which was issued by the Governor-General in Edward Mills' case(1), and the notification with which we are dealing in this case. This is not to say that every order issued by an executive authority has the force of law.
If tile order is purely administrative, or is not issued in exercise of any statutory authority it may not have the force of law. But where a general order is issued even by an executive authority which confers power exercisable under a statute, and which thereby in substance modifies or adds to the statute, such conferment of powers must be regarded as having the force of law.
In Chanabasappa Shivappa v. Gurupadappa Murigappa (2 ) decided by the Mysore High Court under s. 119 of the States Reorganisation Act, 1956, which in terms is substantially the same as s. 87 of the Bombay Reorganisation Act, 1960, and the definition of 'law' as given in s. 2(h) of that Act is in terms identical with the definition given in s. 2(d) of the Bombay Reorganisation Act, the operation of a notification issued by the Government of Bombay conferring powers to try election petitions under the Bombay District Municipal Act, 1901, after the reorganisation of the State of Bombay under the States Reorganisation was, in our view, properly upheld.
The second question on which argument was advanced does not require much elaboration. By s. 5A of the Land Acquisition Act, power to hear objections has to be exercised by the Collector as defined in s. 2(c) of the Act. The power to hear objections is under the statute, not the power of the appropriate, Government, but of the Collector. The expression 'Collector' as defined in the Act is either the Collector of a district or any officer specially appointed by the appropriate Government to perform the function of a Collector under the Act. The (1)1955 1 S.C.R. 735.
(2) I.L.R. (1958) Mysore 48.
316 statute itself confers authority to appoint a Collector for the purposes of the Act by the appropriate Government, and the Commissioner acting in pursuance of the powers conferred upon him by Art. 258(1) appointed the Additional Special Land Acquisition Officer, Ahmadabad, as Collector for the purposes of s. 5A. In so appointing the Additional Special Land Acquisition Officer the Commissioner exercised the power which was statutorily vested in the appropriate Government.
It may at once be observed that no materials have been placed before the Court by the appellant to support the contention which was at one stage faintly advanced that the proceedings of the Collector were irregular or illegal. The Collector held an inquiry as contemplated by s. 5A and made his report to the Commissioner exercising the functions of the appropriate Government and in pursuance of that report the notification under s. 6 of the Land Acquisition Act was issued. Under s. 5A(2) every objection to the acquisition of the land notified or of any land in the locality has to be made to the Collector in writing and the Collector has to give the objector an opportunity of being heard either in person or by pleader and he has, after hearing all such objections, and after making such further inquiry, if any, as he thinks necessary, to make a report of his recommendations on the objections. The report under s. 5A is not a condition precedent to the issue of the issue of the notification under s. 6. The appropriate Government may under the emergency clause in s. 17 take possession of the land free from all encumbrances and direct under sub-s. (4) of s. 17 that in the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-s. (1) or sub-s. (2) are applicable, the provisions of s. 5A shall not apply. Again the Collector is not required to arrive at any decision. He has to submit the case for the decision of the appropriate Government together with the record of the proceedings held by him and a report containing his recommendations on the 317 objections. Prima facie, such a report would be an administrative report, relying upon which the Government makes its decision under s. 6 whether or not to notify the land for acquisition. The decision that any particular land is needed for a public purpose is an administrative decision and it is for the purpose of arriving at that decision that the Act requires that certain inquiries be made. It is true that the Collector is required to follow the procedure prescribed and to give an opportunity to the objector of being heard in person or by a pleader. It is, however, open as s. 5A expressly provides to the Collector to make an independent inquiry, apart from the enquiry on the objections submitted . It cannot in the circumstances be said that the inquiry is a judicial or a quasi-judicial inquiry. There was in the present case no delegation of any judicial power vested in the Central Government. The power to hold an inquiry is statutorily vested in the Collector, and the Collector has exercised that power. The Commissioner exercising his authority entrusted to him merely appointed on behalf of the Central Government the Additional Land Acquisition Officer as the Collector and considered the report in pursuance of the functions entrusted to him under the notification issued by the President. In so acting he did not act in any manner inconsistent with the authority conferred, or which could in law be conferred, upon him.
The second objection must also fail.
In our view therefore the appeal fails and is dismissed with costs.
WANCHOO J.-We regret we are unable to agree.
This is an appeal on a certificate granted by the Gujarat High Court. The appellant is the owner in possession of Final Plot No. 686 of Ellis Bridge Town Planning Scheme No.
3 in Ahmedabad measuring 7,018 sq. yards. On September 1, 1960, a notification was issued under s. 4 of the Land Acquisition 318 Act, No. 1 of 1894 (hereinafter referred to as the Act) by the Commissioner of Baroda acting under powers entrusted to him by an order of the President under Art. 258(1) of the Constitution. By this notification the Commissioner notified that 3,200 sq. yards out of this plot was needed for the construction of a telephone exchange building.
Further by this notification the Commissioner appointed the Additional Special Land Acquisition Officer, Ahmedabad to perform the functions of the Collector under s. 5A of the Act in respect of this land. Thereafter necessary action was taken under s. 5A of the Act and the Commissioner made a notification under s. 6 of the Act on January 12, 1961, after considering the report of the Collector appointed under the earlier notification under s. 4 and by this notification the Commissioner specified that 3,387 sq. yards would be needed for the construction of the telephone exchange building in Ellis Bridge out of plot No.686.
Thereafter on February 22, 1961, the appellant filed the writ petition out of which the present appeal has arisen and he challenged the notification under s. 6 of the Act on three main grounds, namely-(1)The notification dated July 24, 1959, under Art. 258(1) of the Constitution could not invest the commissioner with the powers therein specified in view of the fact that it was made at a time when the new State of Gujarat which came into existence on May 1, 1960 did not exist, and the officers of the State of Gujarat could only be entrusted with these functions under Art. 258(1) with the consent of the Government of Gujarat. As the notification of July 24, did not have the consent of the State of Gujarat, it could not be available for the purpose of conferring any power on the officers of the State of Gujarat after May 1, 1960.
(2)Even if the notification of July 24, 1959, was effective after the coming into existence of the State of Gujarat, the Commissioner could not appoint the Additional Special Land Acquisition Officer as 319 a Collector for the purpose of s. 5-A of the Act, as that would amount to delegation of his delegated authority.
(3)..The proceedings under s. 5-A of the Act are quasijudicial proceedings and that is another reason why the Commissioner could not delegate his functions under s. 5-A to any other officer.
The petition was opposed on behalf of the Union of India and its contention in. reply to the three main grounds was that(1)the notification under Art. 258 dated July 24, 1959, had the force of law and therefore in view of ss. 82 and 87 of the Bombay Reorganisation Act, 1960, No. XI of 1960, (hereinafter referred to as the Reorganisation Act), the notification continued to have full force and effect and the Commissioner could act under the functions entrusted to him;
(2)the Commissioner had authority in view of the notification under Art. 258(1) to appoint a Collector within the meaning of s. 3(c) of the Act and there was no question of any sub-delegation of delegated authority by the Commissioner,; and (3)the functions under s. 5-A of the Act are not quasijudicial but administrative. Even if they are quasijudicial, they are vested in the Collector or any officer specially appointed by the appropriate government to perform the functions of a Collector under the Act, and this is exactly what was done by the Commissioner.
The High Court dismissed the petition holding that the notification of July 24, 1959, under Art. 258(1) of the Constitution had the force of law and was therefore saved under s. 87 of the Reorganisation Act. In consequence reading s. 87 with s. 82 of the Reorganisation Act, the Commissioner would have the power to carry on the functions entrusted to him by the notification of July 24, 1959. It further held that the Commissioner had the authority by virtue of the notification of July 24, 1959, to appoint any officer specially to carry on the duties assigned 320 to the Collector under the Act and therefore the officer so appointed could carry on the duties assigned to the Collector under the Act. Finally, it held that proceedings under s. 5-A of the Act were administrative in nature and there was therefore no question of delegation of any quasijudicial functions either by the notification dated July 24, 1959, or by the order of the Commissioner appointing an officer specialty to carry on the duties of the Collector under the Act. The appellant thereupon applied for a certificate which was granted; and that is how the matter has come up before us.
The main question that falls for consideration is the nature of the notification dated July 24, 1959, under Art. 258(1) of the Constitution. The contention of the appellant is that Art. 258(1) deals with entrustment of executive functions only by the President to the State Government or to its officers with its consent and has no application to entrustment of any other functions of the President, whether legislative or quasi-judicial. Therefore any notification issued under Art. 258(1) can only amount to an executive act of the President and cannot have the force of law. Further, it is urged that even if the fact that the scope of Art.
258(1) is only confined to entrustment at executive functions may not be decisive of the question whether a particular order passed under it is an executive act, the nature of the order passed in the present case is such that it must be held to be executive in character and cannot be a law and have the force of law. Consequently s. 87 of the Reorganisation Act will not apply o this order and it will not be saved as an order or notification having the force of law by that section. Lastly, it is urged that s. 82 by itself would not be sufficient to save the power conferred on the Commissioner by the notification of July 24, 1959, for under that section all persons before the appointed day holding or discharging the duties of any post or office in connection with the affairs of the State of Bombay in any area which on that day falls within the State of Maharashtra 321 or Gujarat shall continue to hold the same post or office in that State and shall be deemed to have been duly appointed to the post or office by the Government of, or other appropriate authority in, that State. This, it is urged, only means that the person holding the office of Commissioner immediately before the appointed day will continue to be a Commissioner for the purpose of the State of Gujarat and will be deemed to have been appointed to that office by the State of Gujarat from the appointed day. But s. 82 will not have the effect of the Commissioner continuing to have the functions entrusted to him by the notification of July 24, 1959, for the pre-condition to his retaining such functions, namely, the consent of the State of Gujarat, would be wanting.
It is not disputed on behalf of the Union of India that if the notification dated July 24, 1959, has not the force of law and s. 87 of the Reorganisation Act does not apply to it will not survive after May 1, 1960, when the State of Gujarat came into existence. It is however contended on behalf of the respondents that Art. 258(1) contemplates entrustment not only of executive functions but of all functions, whether legislative or executive or quasijudicial, and that the order of July 24, 1959, has the force of law and would be saved under s. 87 of the Reorganisation Act.
We must therefore proceed to consider whether functions which can be entrusted to the State Government or to its officers with the consent of the State Government under Art.
258(1) are only executive functions or all kinds of functions, whether executive, legislative or quasi-judicial.
Article 258(1) reads as follows :"(1) Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends." 1 SCI/64-21 322 Stress is laid on behalf of the respondents on the word "functions" and it is urged that word is not qualified by the word "executive" and therefore it must be given the widest interpretation and would include all kinds of functions, whether executive, legislative or even quasijudicial, it' any. Further it is urged that the words following the word "functions" in Art. 258(1) are only descriptive in nature and do not mean that the functions which can be entrusted are only executive functions.
Reliance in this connection is placed on a decision of the Allahabad High Court in Amir Khan v. State(", where it was held with reference to s. 124 of the Government of India Act, 1935, which is in the same terms as Art. 258(1) that it was open to the Governor-General to entrust his functions, even though they may be legislative functions, under that section to the Provincial Government.
It is necessary therefore to examine the scheme and setting of Part XI of the Constitution in which Art. 258(1) appears to decide whether the functions which can be entrusted under Art. 258(1) can only be functions in relation to the executive power of the Union or whether they can be functions relating to the legislative or quasi-judicial powers also. Part XI deals with the "relations between the Union and the States" and is divided into two chapters. The first chapter containing Arts. 245 to 255 deals with legislative functions and is mainly concerned with the distribution of legislative powers between the Union and the States. Article 245 gives the general law-making power to Parliament and the legislatures of the States. Article 246 distributes powers of legislation in accordance with Lists 1, 11 and III of the Seventh Schedule between Parliament and the legislatures of the States an(-,', vests additional power in Parliament to make laws with respect to matters in all the Lists with respect to territories not included in a State. Article 247 gives power to Parliament by law to establish additional courts for certain (1) I.L.R. [1962] 2 All. 310.
323 purposes. Article 248 gives residuary powers of legislation to Parliament. Article 249 provides for power of Parliament to legislate with respect to matters in the State List in the national interest in certain contingencies. Article 250 gives power to Parliament to legislate with respect to any matter in the State List if a proclamation of emergency is in force. Article 251 provides for resolution of any inconsistency between the laws made by Parliament under Arts. 249 and 250 and the laws made by the legislatures of the States under Art. 246. Article 252 provides for powers of Parliament to legislate for two or more States by consent. Article 253 gives power to Parliament to legislate to give effect to international agreements. Article 254 provides for resolution of inconsistency between laws made by Parliament and laws made by the legislatures of States with respect to the Concurrent List. Article 255 makes certain procedural provisions with respect to laws which require some recommendation and previous sanction. it will thus be seen that all these Articles in Chapter I deal with legislation.
Chapter II is headed "administrative relations" and contains Articles from 256 to 263. It is divided into three parts, namely, general, disputes relating to water and coordination between States, and is mainly concerned with seeing that the executive power of the Union and of the States is smoothly exercised where it is to be exercised in the same territory. Article 256 lays down that "the executive powe
