Full Judgment Text
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PETITIONER:
STATE OF BOMBAY (MAHARASHTRA)
Vs.
RESPONDENT:
SHIVBALAK GOURISHANKER DUBE & OTHERS
DATE OF JUDGMENT:
31/08/1964
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
SHAH, J.C.
AYYANGAR, N. RAJAGOPALA
CITATION:
1965 AIR 661 1965 SCR (1) 211
ACT:
Delegation of power-Whether includes delegation of
duties necessary for exercise of the power-Bombay Tenancy
and Agricultural Laws Act, 1948 (Bom. 67 of 1948), ss. 65,
83.
HEADNOTE:
A notice was served by the appellant-State inviting the
attention of the respondents to the fact that the
agricultural lands of which they were the owners had
remained fallow, and intimating to them that the appellant
would resume management of the said lands under s. 65 of the
Bombay Tenancy and Agricultural Laws Act unless the
respondents took steps to bring them under cultivation in
the following agricultural season. It appears that later,
an enquiry was made under the orders of the Deputy Collector
as a result of which he passed an order under s. 65
directing that the lands should be resumed by the State for
cultivation. Having failed in their efforts to get the
order of the Deputy Collector altered, the respondents filed
a suit for a declaration that the order passed by the Deputy
Collector was illegal and void and that it could not
dispossess them of the lands which belonged to them. ’Me
suit was dismissed. The respondents appealed to the High
Court and it found that on a fair and reasonable
construction of s. 65(l) read with s. 83, the appellant
could delegate its powers prescribed by s. 65(l), but could
not delegate its duty incidental to the exercise of the said
power, and as it reversed the decree passed by the trial
Court. On appeal by special leave :
HELD : (i) Section 83 authorises the delegation not only of
the powers mentioned by it, but also the duties or functions
which are incidental to the existence of the powers and are
integrally connected with them [216 A-B]
Edward Liso Mungoni V. Attorney-General of Northern
Rhodesia, [1960] 2 W.L.R. 389, referred to.
(ii) Section 65(l) does not require that the Deputy
Collector mini himself go to the agricultural fields and
enquire on the spot whether they were lying fallow. He may,
if he so desires, record evidence himself, or the recording
of the evidence and the actual inspection on the spot can be
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left to some subordinate officer. The report of such local
inspection and the record of the evidence collected in that
behalf would be forwarded to the Deputy Collector, and that
would be the material oil which he would hold the enquiry
himself. This procedure does not involve any delegation at
all. [217 H; 218 B; 217 G-H].
Allingham V. Minister of Agriculture and Fisheries, [1948]
1 AB. E.R. 780, distinguished.
Nathubhai Gandabhai Desai V. State of Bombay & Ors. I.L.R.
[1955] Bom. 407, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 269 of
1962.
Appeal by special leave from the judgment and decree
dated October 5, 1959 of the Bombay High Court in First
Appeal No. 712 of 1955.
212
S. G. Patwardhan and B.R.G.K. Achar, for the appellant.
G. S. Pathak and Naunit Lal, for the respondents.
The Judgment of the Court was delivered by
Gajendragadkar C. J. What is the scope and effect of the
provisions contained in section 65 read with S. 83 of the
Bombay Tenancy and Agricultural Lands Act, 1948 (No. 67 of
1948) (hereinafter called the Act), that is the short
question which arises for our decision in this appeal. The
four respondents are the owner of certain agricultural lands
in Deokhope in Taluka Palghar in Maharashtra. On the 23rd
June, 1951, a notice was served by the appellant, State of
Bombay (now Maharashtra), inviting the attention of the
respondents to the fact that the agricultural lands of which
they were the owners had remained fallow since 1948-49, and
intimating to them that the appellant State would resume
management of the said lands under s. 65 of the Act unless
the respondents took steps to bring them under cultivation
in the following agricultural season. The respondents were
told that in case they wanted to bring the said lands into
cultivation, they should send intimation of their intention
to do so within 15 days from the date of the receipt of the
notice. It appears that later, an enquiry was made under
the orders of the Dy. Collector as a result of which on the
30th December, 1951, he passed an order under s. 65
directing that the lands should be resumed by the Government
for cultivation. Thereafter, representations were made by
the respondents to the Dy. Collector as a result of which
about 8 acres and 30 ghunthas of land were released on the
ground that the owners had taken steps to cultivate that
portion of the lands in pursuance of the direction given to
them by the earlier notice. The order passed ’by the Dy.
Collector in respect of other lands remained unaffected.
Thereafter, respondent No. 1 approached the Collector by his
application dated 24th March, 1952. This application was,
however, rejected. The respondents then moved the Revenue
Department, but that effort also failed. That is why the
present suit was filed by them on the 23rd December, 1953
for a declaration that the order passed by the Dy.
Collector on the 30th December, 1951 was illegal and void,
and that it could not dispossess them of the lands which
belonged to them. As a consequence of the declaration thus
claimed by them, the respondents, asked for a decree for
possession and mesne profits against the appellant.
The appellant disputed the respondents’ claim. It urged
that the suit as framed was barred under S. 63 (I ) and s.
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85 of
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the Act. On the merits, the appellant challenged the
correctness of the allegations made by the respondents. It
was averred by the appellant that the requisite enquiry had
been duly and properly made and the impunged order was
passed in accordance with the relevant provisions of the
Act. According to the appellant, civil court has no
jurisdiction to consider the propriety or reasonableness of
the conclusion reached by the Dy. Collector before he
passed the impunged order.
The learned trial Judge who framed appropriate issues on
these pleadings, in the main upheld the contentions raised
by the appellant. In his opinion, the present suit was
barred by sections 65 (1) and 85 of the Act. He also held
that the declaration made by the Dy. Collector was not null
and void. The plea raised by the respondents against the
validity of the statutory provisions contained in sections
65 & 66 of the Act was rejected by him, because he thought
that the said sections did not contravene the provisions of
Articles 19 and 31 of the Constitution. The learned Judge
also found that the grievance made by the respondents
against the propriety or reasonableness of the enquiry made
prior to the passing of the impunged order was not
justified. In the result, the respondent’s suit was
dismissed.
The respondents then carried the matter before the High
Court by an appeal, and on their behalf three contentions
were raised before the High Court. It was first argued that
the lands in respect of which the impunged declaration was
made were not lands as defined by the Act, and so, the
relevant provisions of the Act were inapplicable. It was
then urged that before the Government could exercise its
powers under s. 65 of the Act, a duty was cast on it to be
satisfied that the lands had remained uncultivated for a
period of two years before their management was assumed; and
this condition had not been satisfied, because delegation by
the State Government to subordinate officers of its duty to
satisfy itself, or its power to make the declaration, was
not justified in law. It was also contended that since the
satisfaction had to be by the authority who was competent to
make the declaration, he could not delegate any part of his
function and duty in that behalf and the said authority had
to hold the enquiry himself.
The High Court has upheld the second of these
contentions. It has found that on a fair and reasonable
construction of s. 65(1) read with s. 83, the appellant
could delegate its powers prescribed by s. 65(1), but could
not delegate its duty incidental to the exercise of the said
power. That is why the decree passed
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by the trial Court has been reversed on this ground and the
respondents’ suit ’has been decreed. Consistently with this
decision, an appropriate order has been passed in regard to
the delivery of possession and the payment of mesne profits
as claimed by the respondents. It is against this decree
that the appellant has come to this Court by special leave;
and the only point which is raised on its behalf by Mr.
Patwardhan is that the view taken by the High Court in
regard to the scope and effect of the provisions contained
in S. 65(1) read with S. 83 is not well-founded.
Section 65(l) reads thus
"If it appears to the State Government that
for any two consecutive years, any land has
remained uncultivated or the full and
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efficient use of the land has not been made
for the purpose of agriculture, through the
default of the holder or any other cause
whatsoever not beyond his control the State
Government may, after making such enquiry as
it thinks fit, declare that the management of
such land shall be assumed. The declaration
so made shall be conclusive."
Along with this section, it is necessary to refer to s. 83
which reads thus:-
"The State subject to such restrictions and
conditions as it may impose, by notification
in the Official Gazette, delegate to any of
its officers not below the rank of an
Assistant or Deputy Collector, all or any of
the powers conferred on it by this Act."
The High Court appears to have taken the view that though it
was competent to the State Government to delegate its powers
under s. 65(l), it could not delegate its duty or obligation
to make an enquiry as a result of which the declaration in
question can be made. The State Government, says the High
Court, can exercise its authority to make a declaration and
this authority or power can be delegated under 9. 83; but
before such authority or power can be exercised, there is an
obligation imposed on the State Government to make an
enquiry as to whether the agricultural land in question has
remained uncultivated or fallow for the period prescribed by
the statute, and the obligation or duty to hold such an
enquiry which is distinct and separate from the power or
authority to make a declaration consequent upon the enquiry,
cannot be
215
delegated under s. 83. It is common ground that the enquiry
was not made by the State Government and if the view taken
by the High Court is right that the obligation or duty to
hold the enquiry cannot be delegated, then the impugned
declaration would be open to attack because it had not been
preceded by a proper enquiry. Mr. Patwardhan contends that
the view taken by the High Court is plainly erroneous and we
are satisfied that this contention is well-founded.
Section 83 in terms authorises delegation by the State
Government to any of its officers of the specified status
and the delegation can be in respect of all or any of the
powers conferred on the State Government by the provisions
of the Act. Now, it seems to us that the authority to
delegate all or any of the powers which is expressly
conferred on the State Government by s. 83 would be rendered
almost meaningless if the duty to hold an enquiry as a
condition precedent for the exercise of the said authority
cannot be delegated. In the context, the power which can be
delegated is inseparable from the enquiry which must precede
the exercise of the power, and so, in order to make s. 83
effective it is necessary to hold that the delegation of the
power authorised by the said section must necessarily
involve the delegation of the discharge of obligations or
functions which are necessary for the exercise of the said
power.
If the view taken by the High Court is right it would mean
that whereas the State Government can authorise any of the
officers belonging to the specified class to exercise its
powers under s. 65(l), it must hold the preliminary enquiry
itself without delegating the authority to’ hold such an
enquiry to any officer. It is hardly necessary to emphasise
that this position is so plainly illogical that it would be
unreasonable to recognise the validity of the authority to
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confer powers while insisting that the conditions precedent
for the exercise of the powers are of such a separate and
distinct character that in order to satisfy the said
conditions, the required enquiry must be held not by any
delegate of the State Government but by the State Government
itself. In coming to the conclusion that the duty, as
distinct from the power, cannot be delegated, the High Court
was apparently influenced by the fact that there would be no
appeal against the enquiry and the conclusion reached at
such an enquiry. We do not propose to express any opinion
on this part of the reasoning adopted by the High Court;
that will depend upon the construction of s. 86 of the Act.
But whatever may be the position in respect of the
competence -of an appeal, we are satisfied that on
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a fair and reasonable construction of s. 83 it must be held
to authorise the delegation not only of the powers mentioned
by it, but also of duties or functions which are incidental
to the ,exercise of the powers and are integrally connected
with them.
In this connection, we may usefully refer to the
decision of the Privy Council in Edward Liso Mungoni v.
Attorney-General of Northern Rhodesia(1). In that case, in
dealing with a similar question under regulation 16(1) of
the Emergency Powers Regulations, 1956 of Northern Rhodesia,
made by the Acting Governor of Northern Rhodesia under his
statutory powers, the Privy Council has held that the power
and the duty under reg. 16(1) were so interwoven that it was
not possible to split the one from the other so as to put
the duty on one person and the power in another; the
regulation contained not so much a duty, but rather a power
coupled with a duty, and he who exercised the power bad to
carry out the duty. In the result, the Privy Council took
the view that in delegating his functions under reg. 16(41)
the Governor could delegate both the power and duty together
to ,one and the same person-he could not delegate the power
to another and keep the duty to himself. It is not
difficult to realise what anomalous consequences would
follow if it is held that the power can be delegated, but
not the duty to hold the incidental enquiry which alone can
lead to the exercise of the power. In substance, the view
taken by the High Court would make the authority to delegate
the power wholly meaningless. In fairness, we ought to add
that Mr. Pathak who appeared for the respondents did not
seek to support this part of the High Court’s decision.
It appears that a result of the decision of the High
Court in the present case, the Maharashtra Legislature
thought it prudent to make the necessary amendment in s. 83
of the Act. Section 29(a) of the Amending Act provides that
for the words "powers conferred the words "Powers conferred
or duties impose&’ shall be and shall be deemed to have been
substituted ,on the 31st day of October, 1949; and
accordingly, the delegation or the purported delegation by
the State Government under s. 83 of any duty imposed shall
(notwithstanding the judgment, decree or order of any Court)
be deemed always to have been valid, and the discharge of
any such duty by any officer shall for all purposes be valid
and effective and shall not be called in question in any
Court on the ground only that the State Government had no
power to delegate the duty; and clause (b) provide that
(1) [1960] 2 W.L.R. 389.
217
to the marginal note the words "and duties" shall be added.
It is not surprising that in view of the serious
consequences which would have inevitably followed if the
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judgment under appeal had remained unchanged, the
legislature thought it necessary to make a suitable
amendment in order to avoid any interruption in the peaceful
and smooth working of the,, relevant provisions of the Act.
Realising the infirmity in the view taken by the High
Court, Mr. Pathak attempted to support the decision of the
High Court on another ground. He argued that since the
enquiry was made by the Talathi and the Mamlatdar under s.
65 and not by the Dy. Collector, the declaration made by
the Dy. Collector was invalid. In other words, the
argument is that the State Government may have validly
delegated its powers under s. 65(l) to the Dy. Collector,
but the Dy. Collector who is a delegate of the State
Government cannot, in turn, delegate a part of his power or
authority to a subordinate of his own, and that is what he
has done in the present case. This argument proceeds on the
basis that in exercising his powers under s. 65 ( 1 ), the
Dy. Collector must himself hold the enquiry and cannot
delegate the function of holding such an enquiry to any
other subordinate revenue officer. There is no doubt that a
delegate who has received the authority from the principal
cannot, in turn, delegate his own authority to a delegate of
his own, but there is hardly any question of delegation by a
delegate in the present case. All that s. 65(l) requires is
that the State Government and therefore its delegate may
after making such enquiry as it think,; fit, declare that
the management of the land shall be resumed. In other
words, in what form the enquiry should be held is a matter
left entirely in the discretion of the State Government or
its delegate. All that the Dy. Collector has done in the
present case is to direct his subordinate officers to
collect material relevant to the purpose of the enquiry.
The Talathi went on the spot and ascertained as to whether
the respondents’ lands were lying fallow for the requisite
period. He submitted his report to the Mamlatdar. The
Mamlatdar in turn made his report to the Dy. Collector. In
other words, all that the Dy. Collector has done is to
collect the relevant material, so that he can enquire into
the question as to whether the lands are lying fallow or
not. This procedure does not, in our opinion, involve the
question of any delegation at all. The form of the enquiry
and its mode are entirely in the discretion of the Dy.
Collector. Section 65(l) does not require that the Dy.
Collector must himself go to the agricultural fields and
enquire on the spot whether they are lying fallow. He may,
if
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he so desires, record evidence himself, or the recording of
the evidence and the actual inspection on the spot can be
left to some subordinate officer. The report of such local
inspection and the record of the evidence collected in that
behalf would be forwarded to the Dy. Collector, and that
would be the material on which he would hold the enquiry
himself. The enquiry is thus hold by the Dy. Collector,
though the mechanical work of collecting material has been
entrusted to a subordinate revenue officer. In such a case,
we do not see how the principle that a delegate cannot
delegate comes into operation.
In support of his argument, Mr. Pathak has relied on a
decision of the Kings Bench Division in Allingham and anr.
v. Minister of Agriculture and Fisheries(1). In that case,
the Court held that on the principle of delegatus non potest
delegare, the Committee exercising its powers under reg.
62(1) could not delegate its powers to determine the land to
be cultivated to its officers and, therefore, the notice
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issued in that behalf was ineffective and noncompliance with
it was not an offence. It, however, appears that the War
Agricultural Committee for the County did appoint the
Biggleswade district Committee as a sub-committee to Act
under the instructions of the executive committee and to
make recommendations to the executive committee.
Apparently, they made some recommendations to the executive
officer and the executive officer accordingly made the
order. On these facts, Lord Goddard, C.J., observed that he
could find nothing in the regulations or the statute which
enabled the executive officer to make the order. The
appellants had contended before the Court that they were
entitled to have the decision of the executive committee and
no one else on the matter, and this contention was upheld on
the facts of that case. We do not see how this case can
assist Mr. Pathak’s argument in the appeal before us,
because there has been no delegation to hold an enquiry as
such. What the Dy. Collector has done in the present
proceedings is not to delegate his authority to hold an
enquiry, but to get the material necessary for the enquiry
collected by his subordinate officers. After the material
was thus collected, he examined the material himself, held
the enquiry and came to conclusion that the lands had
remained fallow and uncultivated for the requisite period.
We are, therefore, satisfied that the English decision on
which Mr. Pathak relies does not assist him in the present
case.
This contention appears to have been raised before the High
(1) [1948] 1 All E.R. 780.
219
Court and has been rejected by it and, we think, rightly.
In fact, in Nathubhai Gandabhai Desai v. The State of Bombay
and Ors.(1), a similar contention was raised before the High
Court and had been rejected by it. In that case, the High
Court has field that inasmuch as the Legislature has left it
entirely to the discretion of the State Government or the
delegated authority to hold such enquiry as it thinks
proper, if an enquiry Is held the Court cannot consider as
to whether the enquiry was a proper one or whether a better
enquiry would not have yielded better results. This view
has been consistently followed in the Bombay High Court and
we see no reason to doubt its correctness.
In the result, the appeal succeeds, the decree passed by the
High Court is set aside and that of the trial Court
restored. There would be no order as to costs throughout.
Appeal allowed.
(1) I.L.R. [1955] Bom. 407.
220