Full Judgment Text
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PETITIONER:
BEJOY LAKSHMI COTTON MILLS LTD.
Vs.
RESPONDENT:
STATE OF WEST BENGAL AND ORS.
DATE OF JUDGMENT:
18/01/1967
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
RAO, K. SUBBA (CJ)
SHAH, J.C.
SIKRI, S.M.
RAMASWAMI, V.
CITATION:
1967 AIR 1145 1967 SCR (2) 406
CITATOR INFO :
R 1974 SC2192 (39,40,130)
ACT:
Constitution of India, Art. 166(2) and (3)-Authentication
according to Rules made by Governor-Whether conclusive of
the Governor having acted in accordance with law.
West Bengal Land Development and Planning Act, 1948-
Notification under s. 4 and declaration under s. 6-Whether
required to be made on Governor’s personal satisfaction-
Minister making Standing Order under the Rules of Business
made by Governor under Art. 166(3)-Whether proceeding under
the Act covered by the Standing Order-Therefore whether
required to be dealt with by Minister.
HEADNOTE:
The State Government issued a notification in February 1955
under s. 4 of the West Bengal Land Development and Planning
Act, 1948, to the effect that certain lands, a major portion
of which belonged to the appellant, were likely to be.
needed for a public purpose. This notification was signed
by the. Assistant Secretary in the Land and Revenue Depart-
ment of the State Government. A development scheme was then
prepared and after objections to it bad been invited and
disposed of, the Land Planning Committee which is the
prescribed authority under the Act, recommended acceptance
of the scheme and the issue of a declaration under s. 6 of
the Act. This declaration was issued by the Government in
July 1956 and was signed by the Deputy Secretary in the same
Department.
The appellant filed a writ petition under Art. 2Z6 of the
Constitution praying that the notification under a. 4 and
the declaration under a. 6 be quashed. It was contended by
him that the entire proceedings were void for the reasons,
inter alia, (i) that the notification, the declaration, and
the sanctioning of the scheme for the notified area were all
done by the Assistant or Deputy Secretary and the State
Government could not be said to have applied its mind in the
proceedings; inasmuch as the executive power of the State is
vested in the Governor under Art. 154(1) of the Constitu-
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tion, it is satisfaction of the Governor that is
contemplated under as. 4 and 6 of the Act; (ii) that under
the Rules of Business made by the Governor under Art.
166(3), the Minister-in-charge had issued a Standing Order
on November 29, 1959 specifying matters which were required
to be referred to him; as the proceedings taken under the
Article fell within certain items of that Standing Order,
they could only be dealt with by the Minister himself and
were in fact not so dealt with.
On the other hand, it was contended on behalf of the State
(i) that as the notification and the declaration were
authenticated according to the Rules made by the Govern or
under Art. 166(2) and as they also contained a recital that
the Governor was of the opinion the lands were needed for a
public purpose, thus showing that the Governor’s
satisfaction was made out, it was not open to the appellant
to go behind and question their validity; and (ii) that the
proceedings taken in the case did not fail under any of the
items in the Standing Order and did not therefore require to
be brought to the notice of the Minister before issue of
orders.
407
The Single Bench that board the petition, while rejecting
the other contentions of the appellant, held that the
proceedings taken under the Act fell within item 18 of the
Standing Order which covered all cases proposed to be taken
up by the Land Planning Committee and Item 29 relating to
cases under the Land Acquisition, Act; they should therefore
have been referred to the Minister; as this had admittedly
not been done, the entire proceedings were illegal and void.
However, a Division Bench, in appeal, took the view that
while item 29 of; the Standing Order did not apply at all,
under item 18 it was only necessary that the proceedings
after the issue of the notification under s. 4 should be
dealt with by the Minister. It therefore upheld that
notification but set aside all the subsequent proceedings.
In appeal before this Court the only question for
consideration was whether the notification under s. 4 was
validly issued.
HELD: Dismissing the appeal,
The High Court had rightly upheld the validity of the
notification under s. 4 of the Act.
When authentication is in accordance within Art. 166(2) what
it makes conclusive is that the order has been made by the
Governor. But the further question as to whether, in making
the order, the Governor has acted in accordance with law,
remains open for adjudication. [417 B]
R. Chitralekha v. State of Mysore, [1964] 6 S.C.R. 268,
followed.
The Governor’s personal satisfaction was not necessary in
the present case as this was not an item of business with
respect to which -the Governor is, by or under the
Constitution, required to act in his discretion. [418 D-E]
The terms of s. 4 make it clear that it is on the
satisfaction of the State Government that any land is needed
or is likely to be needed for a public purpose, that a
notification is issued. Although in the present case the
Land Planning Committee had in fact recommended the
acquisition of the land and the issue of a notification
under s. 4, there is no provision in the Act or the rules
making it obligatory on the part of the State Government to
consult the Committee at this stage, Item 18 of the Standing
Order did not therefore apply. Other items in the order
were also not applicable and it was not therefore necessary
for the proceedings to be referred to the Minister. [420 E;
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421 D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 216 and
217 of 1964.
Appeals from the judgment and order dated March 5, 1959 of
the Calcutta High Court in Appeals from Original orders Nos.
397 and 398 of 1958.
Bishan Narain and B. P. Maheshwari, for the appellant (in
both the appeals).
B. Sen, D. N. Mukherjee and P. K. Bose, for the
respondents Nos. 1, 2, and 4 (in both the appeals).
S. K Roy Choudhury, Rameshwar Nath, Mohinder Narain
and P. L. Vohra, for respondent No. 3 (in both the appeals).
408
The Judgment of the Court was delivered by
Vaidialingam, J. These two appeals, on certificate, are
directed. against the judgment of the Calcutta High Court,
in Appeals from Order, Nos. 397 and 398 of 1958, dated March
5, 1959, in so far as the High Court has held that the
notification, issued by the -State Government, under, s. 4
of the West Bengal Land Development and Planning Act’ 1948
(W. B. Act XXI of 1948) (hereinafter, referred to as the
Act), is valid. The appellant and respondents, in both the
appeals, are the same and common questions arise for
consideration in both.
The Society Of -Farmers and Rural Industrialists, of which
the third respondent is the Secretary, requested the first
respondent, the State of West Bengal, to acquire,
compulsorily, certain lands for the establishment of an
Agricultural Colony for creating better living conditions
therein. The first respondent issued’ a notification, on
February 4, 1955, under s. 4 of the Act, stating that an
extent of about 28 - 59 acres of lands, more fully described
therein, and situated in the villages of Ghola and Natagarh,
is likely be needed for a public purpose, viz., the
establishment of an agricultural colony and the creation of
better living conditions. There is no controversy that a
major portion of the lands, comprised in ,this notification,
belonged to the appellant-Mills. The said,, notification
was published in the Calcutta Gazette, On February 17, 1955.
This notification -was signed by the Assistant Secretary,
Land and Revenue Department of the Government of West
Bengal.
The first respondent then directed the Society to prepare a
development scheme and submit the same to the Collector, to
enable him to hear objections as per the rules framed under
the Act. On or about March 21, 1955, the Society submitted
a development scheme and the Collector issued notice, under
r. 5 (2) of the West Bengal Land Development and Planning
Rules, 1948 (hereinafter referred to as the Rules), inviting
objections, within the time specified therein, to the scheme
being sanctioned. The objections filed by the appellant
Mills, to the sanctioning of the scheme, were overruled by
the Collector. On February 10, 1956 the Land Planning
Committee which is the prescribed authority, under the Act,
recommended acceptance of the scheme submitted by the
Society and for issue of a declaration, by the Government,
under s. 6 of the Act. On July 21, 1956, the Government
issued the declaration, under s. 6 of the Act, which again,
was published in the State Gazette, on August 9, 1956. This
declaration was signed by the Deputy Secretary, Land and
’Revenue Department, Government of West Bengal. On August
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28, 1956, notice of the intention to take possession of the
lands was issued, under r. 8 of the Rules.
409
On September 13,1956, the appellant-Mills filed, in the
Calcutta High Court, a writ petition, Civil Rule No. 2620 of
1956, under Art. 226 of the Constitution, and prayed for a
writ in the nature of mandamus, to be issued directing the
State Government and its officers, not to give effect or
take any steps, on the basis of the notice issued. It also
prayed for the issue of a writ, in the nature of certiorari,
quashing the notification, under S. 4, and the declaration
under s. 6, issued by the State Government. Though the
appellant raised several grounds of attack, as against the
proceedings, leading up to the issue of the notice, under r.
8, the main point that appears to have been urged before the
learned Single Judge, who heard the writ petition, was that,
having due regard to the scheme of the Act and the materials
available, it cannot be said --that the Government have
sanctioned any scheme, nor can Government be said to have
been satisfied, before issuing the declaration under s. 6 of
the Act, that the notified lands were, needed for a public
purpose.. In short, the appellant’s stand appears to have
been that the proceedings have been initiated by the
Assistant Secretary of the Department and, orders issued
either by him or by the Deputy Secretary and hence actions
taken by them, though in the name of the State Government,
are not valid, -inasmuch as they are not in conformity with
the Act. The State Government, on the other hand, contended
that there has been due compliance with the provisions Of
the statute and the proceedings taken by it are legal and
valid, as they have been dealt with by officers who have
been authorised to act in that behalf.
Before we refer to the findings recorded by the High Court,
in the writ petition, it is necessary to refer to some of
the provisions of the Act and the rules framed thereunder,
in order to appreciate the contentions taken by the parties
and the opinion expressed by the High Court. It is also
necessary to refer to the Rules of Business, issued by the
Governor of West Bengal, under Art. 166(3) of the
Constitution and the Standing Orders made by the
Minister-in-charge of the Department of Land and Land
Revenue.
Art. 166 of the Constitution is a; follows
"166. (1) All executive action Of the
Government of a State shall be expressed to.
be take’" in the name of the Governor.
(2) Orders and other instruments made and
executed in the name of the Governor shall be
authenticated in such manner as may be
specified in rules to be made by the Governor,
and the validity of an order or instrument
which is so authenticated shall not be called
in
410
question on the ground that it is not an
order or instrument made or executed by the
Governor.
(3) The Governor shall make rules for the
more convenient transaction of the business of
the Government of the State, and for the
allocation among Ministers of the said
business insofar as it is not business with
respect to which the Governor is by or under
this Constitution required to act in his
discretion."
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In exercise of the,power conferred by Art.
166(2), the Governor ,of West Bengal had
issued, on August 25, 1951, the following
rules :
" (1) All orders or instruments made or
executed by or on behalf of the Government of
West Bengal shall be expressed to be made or
executed by or by order of the Governor of
West Bengal.
(2) Save in cases where an officer has been
specially empowered to sign an order or
instrument of the Government of West Bengal,
every such order or instrument shall, be
signed by either a Secretary, Joint Secretary,
Deputy Secretary, an Under Secretary or an
Assistant Secretary to the Government of West
Bengal and such signature shall be deemed to
be the proper authentication of such orders or
instruments.
Under Art. 166(3), the Governor of West Bengal
has framed Rules of Business; on August 25,
1951. Rules 4, 5, 19 and 20, which alone are
material, are as follows
"4. The business of the Government shall be
transacted in the department specified in the
First Schedule and shall be classified and
distributed between those departments as laid
down therein.
5. The Governor shall on the advice of the
Chief Minister allot among the Ministers the
business of the Government by assigning one or
more departments to the charge of a Minister;
19. Except as otherwise provided by any
other rule, cases shall ordinarily be disposed
of by or under the authority of the Minister-
in-charge who may by means of standing orders
give such directions as he thinks fit for the
disposal of cases,in the department. Copies
of such standing orders shall be sent to the
Governor and the Chief Minister.
411
Provided that until such standing orders are
made by a Minister, the standing orders which
were made under the Rules of Business existing
immediately -before the commencement of these
rates and which were in force in the
department in charge of such Minister imme-
diately before such commencement shall so far
as may be, deemed to be the standing orders
for that department made under this rule.
20. Each Minister shall by means of standing
orders arrange with the Secretary of the
department what matters or classes of matters
are to be brought to his personal notice.
Copies of such standing orders shall be sent
to the Governor and the Chief Minister."
The Minister-in-charge of the Department of
Land and Land Revenue, with which we are
concerned, in these proceedings made Standing
Orders, under rr. 19 and 20 of the Rules of
Business, on November 29, 1951. Standing
Order No.1 is to the effect that all matters
specified therein, are to be brought to the
notice of the Minister. Standing Order No. 2
provided that, apart from the matters referred
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to in Standing Order No. 1, the various items
mentioned therein, relating to Land and Land
Revenue Department, are to be brought to the
notice of the Minister, before the issue of
orders. According to the appellant, the pro-
ceedings taken by the Government under the
Act, are covered by item 18, or 28 or 29 of
Standing Order No. 2. Therefore, those items
alone are referred to by us; and they
are as
follows
"18. All cases proposed to be taken up by the
Land Planning Committee set up under the Land
Development and Planning Act.
28. All schemes relating to acquisition and
settlement of waste lands.
29. All cases relating to land acquisition
by companies and Industrial concerns or by
Government under the Land - Acquisition’ Act
before there is notification under Section 4
and agreement under Section 41."
Standing Order No. 5 provided that the Secretary may permit
the Deputy or Assistant Secretaries to dispose of or submit’
to the Minister for orders such cases or classes of cases as
the Secretary may, by general or special order, direct, with
the approval of the Minister-in-charge. By virtue of this
Standing Order, No. 5, the Secretary, Land and Land Revenue
Department, had issued the following Order
412
"Subject to the undermentioned provisos, cases
in the ’different branches of the department
shall be disposed of or when so required by
any rule or order shall be submitted to the
-Minister-in-charge, by or under the orders of
the Deputy Secretary or the Assistant
Secretary, as the cases may be, who is
according to the office Organisation for the
time being in force in charge of the matters
or classes of matters to which the cases
respectively appertain.
Provisos
(1) If the officer dealing with the case
decides that it is of such importance that it
should be submitted to a higher officer in the
department, it shall be so submitted.
(2) Cases from all branches involving major
questions of principles or policy shall be,
submitted to the Minister-in-charge through
Secretary."
We shall now refer to some of the material provisions in the
Act. - Section 2(b) defines ’development scheme’ as a scheme
for the development of land for any public purpose. Section
2(c) defines ’notified area’ as an area declared under sub-
s. (1) of s. 4 to be a notified area. Under s. 3, the State
Government may appoint, in accordance with the rules, an
authority, referred to as the prescribed authority, for
carrying out the purposes -of the Act. There is no
controversy that the Land Planning Committee is the
prescribed authority appointed under S. 3 of the Act. Under
s. 4, the State Government can, by notification in the
Gazette, declare any area specified in the notification to
be a notified area ’if it is satisfied that any land in such
area is needed or is likely to be needed for any public
purpose.......... Under s. 4A any person interested in any
land, within a notified area can file within the time
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prescribed therein, objections to the acquisition of the
land in which he is inter and the Collector has to give an
opportunity to the said objector of being heard; and, after
hearing objections and making such further inquiry, the
collector is to submit the case to the State Government
along with his report. Under s. 5, the State Government may
direct the prescribed authority or authorise any company or
local authority to prepare, in accordance with the rules, a
development scheme in respect of any notified-area. The
said section also provides for such schemes being prepared
and submitted to the State Government for its sanction. The
Government may sanction the scheme either without any
modification or subject to such modifications as it
considers fit. Under s. 6, when a development scheme is
sanctioned, and when the’ State Government is satisfied
413
that any land in the notified area for which such scheme has
been sanctioned, is needed for the purpose of executing such
scheme, a declaration to the effect that such land is needed
for a public purpose shall be made by the State Government.
Section 10 provides for the Government directing the
prescribed authority to execute any development scheme
sanctioned by it :or cause it to be executed in accordance
with, the rules. Section 14 provides for the Government
making rules for carrying-out the purposes of the Act and,
in particular, -in respect of matters mentioned in sub-s.
(2).
The State Government have framed rules called the West
Bengal Land Development and Planning Rules, 1948, earlier
referred to. Under r. 3(1), the authority for carrying out
the purposes of the Act is the Land Planning Committee
appointed by the State Government. Rule 5 provides for the
prescribed authority to prepare and submit a development
scheme when the State Government gives such directions to
that authority, and it also deals with the various other
matters pertaining to the preparation and submission of such
a scheme.
The appellant’s writ petition was heard, in the first
instance, by a learned Single Judge of the _Calcutta High
Court. The appellant raised, broadly, two contentions. The
first contention was that the notification, issued under s.
4 as well as the declaration made under s. 6, of the Act,
and the sanctioning of the scheme for the notified area,
were all done by the Assistant Secretary Land and Revenue
Department of the Government of West Bengal and -the
Government has -not, in any manner, applied- its mind, in
these proceedings, and, therefore, the entire, proceedings
are void. Under this head, the appellant also pleaded that,
inasmuch as the executive power of the State is vested in
the Governor, under Art. 154 (1) of the Constitution, it is
the satisfaction of the Governor that is contemplated, under
ss.14 and 6 of the Act. The second contention was that,
under the Rules of Business framed by the Governor, under
Art. 166(3) of the Constitution, :the business pertaining to
the Department of Land and Land Revenue, to which these
proceedings relate, is to be dealt with - personally by the
Minister-in-charge; and the proceedings to be taken under
the Act cannot be delegated to the departmental officers, by
the concerned Minister. In this particular case, inasmuch
as the proceedings have been taken and orders issued, either
by the Assistant Secretary or the Deputy Secretary, of the
Department, without reference to the Minister-in-charge, the
entire, proceedings are illegal and void. Alternatively, it
was also urged that, even if the Minister-in-charge could
delegate any of these functions to the subordinate officers,
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by making appropriate Standing Orders, in this case there
has been no such delegation, autho-
414
rising the Secretary or the Assistant Secretary to deal with
such matters. In this connection, the appellant has relied
on items 18, 28 and 29, referred to in Standing Order No. 2,
issued by the Minister-in-charge, as indicating that those
matters have to be dealt with only by the Minister.
On behalf of the State it was urged that, as the
notification issued under s. 4 and the declaration made
under s. 6. have been authenticated in the manner, specified
by the Rules made by the Governor under Art. 166(2) of the
Constitution, it was not open to the appellant to go behind
and question the validity of either the notification or the
declaration, which contained a recital that the Governor was
of the opinion that the lands were needed for a public
purpose. According to the State, this recital shows that
the Governor’s satisfaction is clearly made out. The res-
pondents also pointed out that the Governor had issued the
Rules of Business, under Art. 166(3) of the Constitution;
and, under rr. 19 and 20, therefore, the Minister-in-charge,
of the particular department, has been clothed with
authority, by means of Standing Orders, to give such
directions, as he thinks fit, for the disposal of the case
in his department. By virtue of such authority, conferred
on the Minister-in-charge of the Department of Lard and Land
Revenue, in this case, the Minister has made Standing
Orders, on November 29, 1951. The respondents further urged
that the proceedings taken in this case, by the State
Government, under the Act, do not come under any of the
items referred to in Standing Order No. 2, which deals with
matters which are to be brought to the notice of the
Minister, before issue of orders. These matters could be
validly dealt with, by the Assistant Secretary of the said
Department.
The learned Single Judge, after a consideration of the Rules
of Business, issued by the Governor, as well as the Standing
Orders, made by the Minister-in-charge and the relevant
provisions of the Constitution, has held that the contention
of the appellant, that it is the Governor who has to be
satisfied in such matters, cannot be accepted. On the other
hand, the learned Judge has held that, in respect of the
matters in question, the relevant business of the Government
of the State has been allocated, by the Governor, to the
Minister concerned, by issuing Rules of Business. The
learned Judge has also held that, under the Rules of
Business, the Minister-in-charge has got authority to
delegate any particular functions, to be disposed of by his
subordinates. But, after a consideration of the Standing
Orders, made in this case, by the Minister-in-charge, the
learned Judge is of the view that the various’ proceedings,
taken by the Government under the Act, will come under item
18 or 29 of Standing Order N. 2 and, as such, these
proceedings should have been referred to the Ministet-in-
charge,
415
before the issue of orders. It was admitted, by the
Advocate General, before the learned Judge, that none of the
proceedings, which are under challenge, either in the matter
of sanction or satisfaction, received the attention of the
Minister, but was dealt with, either by the Assistant
Secretary, or the Deputy Secretary, So the entire
proceedings, beginning from the issue of the notification,
under s. 4, dated February 4, 1955, and ending with theissue
of the notice, dated August 28, 1956, under r. 8 of the
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Rules,. were held to be illegal and void. In consequence,
the learned Judge granted the prayers, asked for by the
appellant,in his writ petition.
This order of the learned Judge was challenged, in two ap-
peals, before a Division Bench of the Calcutta High Court,
viz., Appeals from Orders Nos. 397 and 398 of 1958. One
appeal was filed by the State, along with respondents 2 and
4, and the other, by the Farmers Society, the 3rd respondent
herein. In both the appeals there was a common attack
against the order of the learned Single Judge setting aside
the entire proceedings taken by the Government, under the
Act. The Division Bench has also held that Art. 166(2) is
only to the effect that, when authentication is made in the
manner mentioned therein, what is made conclusive is that
the order has been made by the Governor; but, whether, in
making the order, the Governor has acted in accordance with
the law, still remains open to adjudication. The learned
Judges have also held that, by virtue of the power conferred
under the Rules of Business issued by the Governor it is
open to a Minister, by making proper Standing Orders, to
delegate his functions and authorise disposal of such
functions to his subordinates. The learned Judges then
considered the question as to whether there has been such a
delegation in the Standing Orders made on November 29, 1951,
regarding the Land Revenue Department. They are not
prepared to accept the contention of the appellant that item
No. 29, of Standing Order No. 2, applies to these procced-
ings, necessitating their being dealt with by the Minister
himself. The view of the learned Judges is that the said
item will relate only to land acquisition, made under the,
Land Acquisition Act; and, the present proceedings being
under the Act, that provision will not apply. The learned
Judges are also of the view that the proceedings connected
with the issue of a notification under s. 4 of the Act, do
not come under item No. 18 of Standing Order No. 2, made by
the Minister. But they are of the view that the said item
will apply to all proceedings taken by the Government under
the Act, after the issue of the notification under s. 4,
and, therefore, the Minister-in-charge should have dealt
with the matters connected with the sanctioning of the
scheme, under S. 5, and the issue of the declaration, under
S. 6, But, inasmuch as the Minister has, admittedly, not
dealt with those proceedings,
416
at that subsequent stage, the learned Judges held that all
orders -passed, and notifications issued, subsequent to the
stage of the issue of the notification,. under s. 4, will
-have to be set aside as void. In view of the fact that the
learned Judges held that the issue of a notification, under
s. 4, is not a matter which has to be dealt with by the.
Minister and, as the exercise of the functions in that
regard have been delegated under the Standing Order, that
notification was allowed to stand. In consequence, the
learned Judges modified the order of the learned Single
Judge, to the extent indicated above.
In these appeals, by certificate, the only question that
arises for consideration is regarding the correctness of the
views expressed by the learned Judges of the Division Bench
of the Calcutta High Court, upholding the validity of the
notification, dated February 4, 1955, issued under s. 4 of
the Act.
On behalf of the appellant, Mr. Bishan Narain, learned coun-
sel, raised substantially the same contentions that were
taken in the writ petition before the High Court. According
to learned counsel, the reasons given by the Division Bench,
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for setting aside the notifications and orders issued under
ss. 5 and 6 of the Act, as well as the other subsequent
proceedings, apply with equal force to the notification
issued under 4. The learned counsel ,also urged that,
inasmuch as the executive power of the State is vested,
under Art. 154, in the Governor, the satisfaction, contem-
plated before issue of the notification under s. 4 of the
Act, should have been arrived at by the Governor himself.
Counsel also urged that, even if, under the Rules of
Business, issued under Art. 166(3) of the Constitution, by
the Governor, a Minister-in-charge can delegate his
functions, by making suitable Standing Orders in that
regard, in this case, the Standing Orders made by the Minis-
ter-in-charge, will clearly show that all the matters
connected with the proceedings to be taken under the Act,
have been reserved to be dealt with by the Minister himself.
Therefore, according to counsel, inasmuch as, admittedly,
the Minister has not dealt with any of these proceedings,
even the issue of a notification under s. 4 is illegal and
void. In this connection, learned counsel referred us to
items 18, 28 and 29, of Standing Order No. 2, made by the
Minister-in-charge, in this case. We may, at this stage,
-indicate that no contention was taken before us that even
if authorised by the Rules of Business, a Minister-in-charge
cannot legally ,delegate any such matters to be dealt with
by his subordinates, by making appropriate Standing Orders.
The same contentions taken in the High Court, on behalf of
the State, have been advanced before us, by Mr. B. Sen,
learned counsel.
417
We have already referred to the Rules of Business and,
Standing Orders. We are in entire agreement with the views
expressed by both the learned Single Judge as we’ll as the
Division Bench of the Calcutta High Court regarding the
scope of Art. 166(2) of the Constitution. The learned
Judges are perfectly correct in their view that what the
authentication makes conclusive, under, Art, 166(2), is that
the order has been made by the Governor. But the further
question as to whether, in making the order, the Governor
has acted in accordance with law, remains open for
adjudication. In this connection, we may refer to the
decision of this Court in R. Chitralekha v. State of
Mysore(1). Subba Rao, J., (as he then was), explains the
scope of Art. 166, at p. 376, thus
"Under Art. 166 of the Constitution all
executive action of the Government of a State
shall be expressed to be taken in the name of
the Governor, and that orders made in the name
of the Governor shall be authenticated in such
manner as may be specified in rules to be made
by the Governor and the validity of an order
which is so authenticated shall not be called
in question on the ground that it is not an
order made by the Governor.
If the conditions laid down in this Article
are complied with, the order cannot be called
in question on the ground that it is not an
order made by the Govenor. It is contended
that as the order in question was not issued
in the name of the Governor the order was void
and no interviews could be held pursuant to
that order. The law on the subject is well-
setled. In Dattatreva, Moreshwar Pangarkar v.
The Stale of Bombay (1952 S.C.R. 612, 625) Das
J., as he then was, observed
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’Strict compliance with the requirements of
article 166 gives an immunity to the order in
that it cannot be challenged on the ground
that it is not an order made by the Governor.
If, therefore, the -requirements ofthat
article are not complied with, the resulting
immunity cannot be claimed by the State.
This, however, does not vitiate the order
itself. ........ Article 166, directs all
executive action to expresse an authenticated
in the manner therein laid down but an omis-
sion to comply with those provisions does not
render the executive action a nullity.
Therefore, all that the procedure established
by law requires is that the appropriate
Government must take a decision as to whether
[1] (1964) 6 S.C.R. 368.
Sup. Court/67-13
418
the detention order should be confirmed or not
under section 11 (1).’
The same view was reiterated by this Court in
The State of Bombay v. Purshottam Jog Naik
(1952 S.C.R. 674), where it was pointed out
that though the order in question then was
defective in form it was open to the State
Government to prove by other means that such
an order had been validly made. This view has
been reaffirmed by this Court in subsequent
decisions : see Ghaio Mall and Sons v. The
State of Delhi (1959 S.C.R, 1424), and it is,
therefore, settled law that provisions of Art.
166 of the Constitution are only directory and
not, mandatory in character and if they are
not complied with, it can be established 1 as
a question of fact that the impugned order was
issued in fact by the State Government or the
Governor.
We are also in agreement with the views expressed by the
High Court that the Governor’s personal satisfaction was not
necessary in this case as this is not an item of business
with respect to which, the Governor is by or under the
Constitution, required to act in his discretion, Although
the executive Government of a State is vested in tie
Governor, actually it is carried -on by Ministers; and, in
this )particular case, under rr. 4 and 5 of the Rules of
Business, referred to above the-business of Government is to
be transacted in -the various departments specified in the
First Schedule thereof. Item 5 therein is the Department of
Land and Land Revenue, and the Governor has allotted the
business of that Department to a Minister. We are further
in agreement with the views of the High Court that the said
Minister-in-charge, has got power to make Standing Orders
regarding the disposal of cases, in his Department, under
the Rules of Business issued by the Governor, on August 25,
1951, under Art. 166(3) of the Constitution. In this case,
there is no controversy that the Minister-in-charge, of the
Department of Land and Land Revenue, has made Standing
Orders on November 29, 1951, by virtue of powers given to
him under ff 19 and 20 of the Rules of Business.
According to the appellant, the entire proceedings connected
with the acquisition under the Act, in this case, will come
under either item 18, 28 or 29 of Standing Order No. 2 and,
in consequence, they require to be dealt with by the
Minister before orders are issued. Inasmuch as the validity
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of the notification, under S. 4, issued under the Act, alone
arises for consideration, in these
419
appeals, the -only question is as to whether it was
necessary for that matter also to be placed before the
Minister-in-charge, either under item 18, 28 or 29 of
Standing Order No. 2. Those items have been referred to, by
us, in- the earlier part of this judgment.
We have no hesitation in rejecting the contention of the
appellant that item 29 will take in proceedings connected
with the issue of the notification, under S. 4. As pointed
out by the learned Judges of the Division Bench of the
Calcutta High Court, that item relates only to acquisition,
under the Land Acquisition Act; and, inasmuch as the issue
of the notification, under s. 4, in this case, is under the
Act, that is not covered by the said item. So, item 29 does
not apply. Learned counsel then urged that this must be
considered to be a scheme relating to acquisition and
settlement of waste lands, in which case, item No. 28 will
stand attracted. So far as this is concerned, the learned
Single Judge, who dealt with the writ petition, has
negatived the contention of the appellant. The learned
Judge has found, as a fact, that there is no evidence to
show that the lands, which are the subject of the issue of
notification, under s. 4, are wastelands; and, therefore, he
has held that it cannot be said that the notification
relates to acquisition of waste lands. The learned Judge
has also stated that, even the appellants in his writ
petition, has not alleged that the land, or any part of it,
is waste. In this view, the learned Judge has held that,
’Ion the evidence, it is not possible to hold that the
acquisition relates to waste lands. No doubt, the Division
Bench has not expressed any opinion on this aspect, but, as
the records now stand, we have to accept the findings
recorded by the learned Single Judge, in which case, it
follows, that the appellant cannot rely upon item No. 28,
either.
This leaves us with the question as to whether the issue of
a notification under s. 4 of the Act is a matter covered by
item No. 18 of Standing Order No. 2, issued by’ the
Minister. If it is a, matter covered by the said item,
there can be no controversy that, before the issue of the
notification under s. 4, the matter should have been dealt
with by the Minister-in-charge. In this case, as we have
already pointed out the it Minister-in-charge has not dealt
with those proceedings; and it is admitted that the
Assistant Secretary of the Land and Land Revenue Department
of the Government of West Bengal, who issued the
notification, under s. 4, alone dealt with the matter. The
learned Single Judge has, no doubt, accepted the contention
of the appellant that item No. 18 of Standing Order No., 2
applies, to all proceedings taken under the Act, including
the issue of a notification, under s. 4. On the other hand,
the learned Judges of the Division Bench have taken a
contrary view,, on this
420
aspect. Having due regard to the Apt and the Rules, and the
matter dealt with by item No. 18, we are in agreement with
the views expressed by the learned Judges of the Division
Bench that item No. 18, of Standing Order No. 2, does not
apply to proceedings connected with the issue of a
notification, under s. 4, of the Act.
We have gone through the entire provisions of’ the Act, as
well as the Rules framed thereunder; and, so far as we can
see, the Land Planning Committee, which is the prescribed
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authority, under s. 3 of the Act, comes into the picture
only when the State Government takes action, under s. 5,
regarding the preparation of a development scheme, and at
subsequent stages. The Land Planning Committee,. set up
under the Act, does not come into the picture, at the stage
when the Government issues a notification, under s. 4 of the
Act. In this connection, it is necessary to note that the
expression ’notified area’, under Is. 2(c) of the Act, means
an area declared, under sub-s. (1) of 1 s. 4, to be a
notified area. The State Government is given power, under
S. 4, by issue of a notification in the Gazette, to declare
any area, specified in the notification, to be a notified
area, if it is satisfied that any land, in such area, is
needed or is likely to be needed, for any public purpose.
There is no provision, either under the Act or the rules
framed thereunder, making it obligatory on the part of the
State Government, to consult, the Land Planning Committee at
this stage. Nor are we able to find any provision, in the
Act or the Rules, which gives a right to the Land Planning
Committee to be consulted, or to propose any case, before a
notification is issued by the Government, under s. 4 of the
Act. There is no duty imposed, or function assigned, to the
Land Planning Committee, either under the Act or the Rules,
to participate at this stage.
No doubt, Mr. Bishan Narain, in this connection, referred us
to the proceedings, dated January 21, 1955, of the 270th
Meeting of the Land Planning Committee, as supporting his
contention that it is the Land Planning Committee that has,
proposed the acquisition of the lands in question, under-
the Act, and therefore, the matter comes under item 18 of
Standing Order No. 2. In the proceedings, referred to by
learned counsel, it is stated that the Land Planning
Committee considered a proposal submitted by the third
respondent herein, for acquisition and development of 28-59
acres of land, in the villages of Ghola and Natagarh. There
is also a recommendation, by the Land Planning Committee,
that the land, referred to by the third respondent, is
needed for a public-purpose and, therefore, it, recommended
that a notification, under s. 4 of the Act, be issued. No
421
doubt, it is seen that the Land Planning Committee has taken
some interest in this matter and supported the proposal of
the third respondent regarding the acquisition. But, the
question is as to whether it is one of the duties or
functions of the Land Planning Committee, which it is bound
to discharge, either under the Act or the Rules. The
answer, in our view, must be in the negative. A reference
to the Act and the Rules would show that there is no such
right given to the Land Planning Committee. It may be that
that Committee advises the Government on particular matters
or makes suggestions to the Government. The Government may
also consult that body and act on its advice or suggestions.
But, before item No. 18 of Standing Order No. 2, can be made
applicable, it must be established that there is a duty or
an obligation, on the Government, to issue a notification
under s. 4 of the Act, only in consultation with the Land
Planning Committee, in which case, it may be stated, that
the Committee is discharging a duty under the Act. We do
not find any such provision making it obligatory, on the
part of the Government, to consult the Land Planning
Committee, at that stage. The terms of s. 4 also makes it
clear that it is really on the satisfaction of the
Government, that any land is needed or is likely to be
needed for ’a public purpose, that a notification is issued,
declaring that area to be a notified area.
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The Act and the Rules clearly show that from the stage of s.
5, when the prescribed authority, viz., the Land Planning
Committee, is directed to prepare a development scheme by
the State Government, the said Committee is discharging its
statutory functions, under the Act.
To sum up, we are not inclined, to accept the contentions of
the appellant, that the issue of a notification, under s. 4
of the Act, is a matter which should hive been dealt with by
the Minister-in-charge himself, on the basis that it is
covered by item 18 of Standing Order No. 2. That item does
not, as pointed out above, apply. If that is so, it is
clear that the issue of a notification, under s. 4 of the
Act, and the satisfaction to be arrived at, that the land,
in the area in question, is required or is likely to be
required for a public purpose, are matters which do not
require to be dealt with by the Minister himself. Under
Standing Order No. 5, the Minister-in-charge has authorised
the Secretary to permit a Deputy or an Assistant Secretary
of the Department, to dispose of certain types of cases and
the, Secretary has also issued an order, which has been
referred to earlier, in conformity with standing order No.5;
and it is by virtue of this provision that the notification,
under s. 4, was issued by the Assistant Secretary, Land and
Revenue Department
422
Government of West Bengal. We are in entire agreement with
the reasons given by the Division Bench of the Calcutta High
Court for upholding the validity of the notification, dated,
February 4, 1955, issued under 4 of the Act.
Before we conclude, we should also make it clear that’ in
this case, no contention was advanced that matters connected
with the issue of a notification, under s. 4 of the Act
cannot be delegated by the Minister-in-charge and that they
have to be dealt with by the Minister himself. We had,
therefore, no occasion to consider this aspect of the
matter. As’ pointed out above, the entire arguments have
proceeded on the basis that there has been no such
delegation, by the Minister, under the Standing Orders made
by him.
The result is, that the appeals fail and are dismissed with
costs of the respondents, one’ set in Civil Appeal No. 216
of 1964.
R.K.P.S. Appeals dismissed
423