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Sardar Daleepsingh S/O Sardar Pratapsingh Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case Number Writ Petition No. 3323 of 1980
Judge
Reported in(1983)85BOMLR497; 1983MhLJ75
AppellantSardar Daleepsingh S/O Sardar Pratapsingh
RespondentState of Maharashtra
Excerpt:
.....government rules of business, rule 13 -- order under section 14(4) authenticated by desk officer, in the name of governor of maharashtra authorising certain authority to hold enquiry whether illegal and void -- general clauses act (act ix of 1897), section 3(6)(c).;clause (3) of article 166 of the constitution of india empowers the governor to make rules for more convenient transaction of the business of the government of the state and for the allocation among ministers of the said business. rules framed by the governor are called the maharashtra government rules of business made under article 166 of the constitution of india. rule 13 of the said rules empowers the officers mentioned in that rule to authenticate orders or instruments of the government of the state to be..........by an order or authorisation dated january 23, 1976 bearing no. ich-1675/342053, signed by the desk officer, was issued. it is thereafter the surplus lands determination tribunal, aurangabad, (hereinafter referred to as 'the s.l.d.t.') held an enquiry and decided the case on april 19, 1977 and found that the petitioner was surplus holder to the extent of 81 acres 24 gunthas.2. in appeal by the petitioner, the learned member of the maharashtra revenue tribunal, aurangabad, (hereinafter referred to as 'the tribunal') found that the enquiry held by the s.l.d.t. was irregular and remanded the case for holding an enquiry afresh to the s.l.d.t. by judgment and order dated september 26, 1978.3. after remand, inter alia, a new point was raised that the desk officer appointed by the state.....
Judgment:

Kanade, J.

1. The proceedings were initiated under the provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Amended Act, 1961. The original petitioner held lands in two divisions of the Maharashtra State, namely,' at Aurangabad Division and Nagpur Division, Section 14(4) of the Maharashtra Agricultural Lands (Ceiling on Holding) Amended Act, 1961 (hereinafter referred to as 'the Ceiling Act') lays down that where a person or family unit holds land in two or more districts of the same division, the enquiry shall be held by the Collector whom the Commissioner may, by order in writing, designate. In view of the facts of this case, it was necessary for the Collector, whom the Government would designate, to make an enquiry. Accordingly the State Government by an order or authorisation dated January 23, 1976 bearing No. ICH-1675/342053, signed by the Desk Officer, was issued. It is thereafter the Surplus Lands Determination Tribunal, Aurangabad, (hereinafter referred to as 'the S.L.D.T.') held an enquiry and decided the case on April 19, 1977 and found that the petitioner was surplus holder to the extent of 81 acres 24 gunthas.

2. In appeal by the petitioner, the learned Member of the Maharashtra Revenue Tribunal, Aurangabad, (hereinafter referred to as 'the Tribunal') found that the enquiry held by the S.L.D.T. was irregular and remanded the case for holding an enquiry afresh to the S.L.D.T. by judgment and order dated September 26, 1978.

3. After remand, inter alia, a new point was raised that the Desk Officer appointed by the State Government had no authority in law to authenticate the order in the name of the Governor of Maharashtra under Article 166 of the Constitution of India. The S.L.D.T. ruled out the points raised by the petitioner and held on enquiry that the petitioner was surplus holder to the extent of % acres. The said order of the S.L.D.T. was further challenged before the Tribunal by way of an appeal. By judgment and order dated April 5, 1980, the learned Member of the Tribunal ruled out the contention raised by the petitioner as to the authentication of the order made by the Desk Officer and on merits remanded the matter again for fresh enquiry to the S.L.D.T.

4. In this writ petition under Article 227 of the Constitution of India, the petitioner has not disputed the order of remand passed by the Tribunal, but the only point raised in this petition is that the letter dated January 23, 1976, issued by the State Government, but signed by the Desk Officer authorising the S.L.D.T. to hold an enquiry is illegal and void.

5. Mr. A.H. Vaishnav, learned Counsel appearing in support of this petition, submitted that under the provisions of Section 14(4) of the Ceiling Act, a sanction is to be given by the State Government and as such the sanction given by the Desk Officer is not legal and authentic. Since the Desk Officer does not come within the meaning of the State Government, the authorisation issued by the Desk Officer to hold an enquiry by the S.L.D.T. is illegal and without jurisdiction.

6. Mr. B.B. Jadhav, learned Assistant Government Pleader, appearing on behalf of the State, submitted that the order or instrument issued by the Desk Officer in the name of the Governor has been authenticated in such a manner as has been specified by the Rules made by the Governor under Article 166 of the Constitution. It is further argued that the authorisation or an order issued by order and in the name of the Governor cannot be called in question on the ground that it is not an order or instrument made or executed by the Government.

7. It is clear that under Clause (3) of Article 166 of the Constitution, the Governor has made rules for smooth function of business of the Government of the State and for the allocation of business amongst the Ministers. It is provided in Rule 13 of the Maharashtra Government Rules of Business made under Article 166 of the Constitution of India that every order or instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or an Assistant' Secretary or such other officer as may be specially empowered in that behalf and such signature shall be deemed to be proper, authentication of such order or instrument. In pursuance of this rule, it is pointed out by Mr. Jadhav that. the Government of Maharashtra by Resolution No. APT-1075/192561/E, dated September 4, 1975, appointed certain Superintendents to function until further orders as Desk Officers with effect from the dates mentioned against their names in the Revenue and Forests Department under the Officer-Oriented System. The said Resolution is annexed to the affidavit filed by one D.T. Padave, Desk Officer, Revenue and Forests Department, Mantralaya, Bombay, at Exhibit 2. One V. 3. Borkar who has authenticated the impugned order appears to have been appointed as Desk Officer with effect from August 30, 1975. In the affidavit filed on behalf of the State and sworn by Padave, Desk Officer, Revenue and Forests Department, it is stated that as per the authorisation dated January 23, 1976 under Section l4(4) of the Ceiling Act, the order had been signed by the Desk Officer who was authorised as per Rule 13 of the Maharashtra Government Rules of Business framed under Article 166 of the Constitution of India. Padave in his affidavit also refers to a Government Resolution dated August 2, 1975 annexed at Exhibit 'A' to the affidavit. He also relies upon a Government order dated September 4, 1975 appointing various Desk Officers. In view of these facts and the documents on the record, Mr. Jadhav submits that the authentication of the order of the State Government cannot be challenged in the present proceeding because of the bar mentioned in Clause (2) of Article 166 of the Constitution.

8. There is much ado about nothing in the point raised in this writ petition. Clause (1) of Article 166 of the Constitution is confined to cases where the executive action is required to be expressed in the shape of a formal order or notification or any other instrument. Usually executive decision is taken on the office files by way of notings or endorsements made by the appropriate Minister or officer. If every executive decision has to be given a formal expression, the whole governmental machinery will be brought to a standstill. The expression 'Executive action' includes (i) orders which embody quasi-judicial decisions taken by Government and (ii) An order of sanction for prosecution, or an order sanctioning appointment of an officer. There are orders passed by the Government orally or otherwise which need not be authenticated, but there are certain orders which are required to be authenticated when they affect an outsider who is not part and parcel of the Governmental machinery.

9. Clause (2) of Article 166 clearly mentions that where the Rules made by the Governor lay down that orders made and executed by the Governor shall be authenticated by the signature of a Secretary, no note or order of a Minister which is not so authenticated can operate as an order of the Government of the State. Clause (2) further puts a bar to judicial enquiry. It lays down that the validity of an order or instrument which is expressed in the name of the Governor, and is duly authenticated according to rules framed by the Governor in that behalf, shall not be called in question in any Court on the ground that it is not made or executed by the Governor. The said bar envisaged by Clause (2) of Article 166 of the Constitution is subject to certain limitations. It does not oust the jurisdiction of the Court to examine the validity of the order or instrument on any other ground. If the order violates a provision of the Constitution or proposes to do something which is a contrary to existing law, or seeks to interfere with judicial functions, or is ultra vires where it purports to exercise a statutory power, the validity of such order can be inquired into by the Court. Bar to judicial enquiry is restricted to proper authentication of an order or instrument made in the name of the Governor. The impugned order or authorisation does not suffer from any defect as to the constitutionality or something which is contrary to law or so as to call for any interference. 1 do not find that the authentication made by the Desk Officer is in any way ineffective so as to invalidate the order or authorisation made by the Desk Officer in the name of the Governor of Maharashtra.

10. Clause (3) of Article 166 of the Constitution empowers the Governor to make rules for more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business. Rules framed by the Governor are called the Maharashtra Government Rules of Business made under Article 166 of the Constitution of India. As stated above, Rule 13 of the said Rules empowers the officers mentioned in that Rule to authenticate orders or instruments of the Government of the State to be signed by such officer and the Desk Officer who has signed the impugned order was specially empowered in that behalf, and, therefore, his order shall be deemed to be proper order or authorisation or instrument. In view of the provisions of Article 166 and the Rules of Business framed by the Governor under the provisions of the said Article, it is futile to contend that the order passed by the Desk Officer is in any way defective, illegal or otherwise bad in law.

11. It is then contended by Mr. Vaishnav that there is nothing on the record to show as to who has passed the order appointing the S.L.D.T. to hold an enquiry under Section 14(4) of the Ceiling .Act, even assuming that the authentication made in the name of the Governor is proper or valid. Mr. Vaishnav emphasized the words 'State Government' used in Section 14(4) of the Ceiling Act. It is submitted that there must be an order passed by the State Government appointing an Enquiry Officer as provided by that section of the Ceiling Act. In support of his contention Mr. Vaishnav relied upon a decision of a Division Bench of this Court in Ganeshrao Kishanrao Deshmukh v. Devisingh Venkatasingh : AIR1972Bom369 wherein it is observed that the function of making a quasi-judicial decision like the one under Section 2-A of the Hyderabad Abolition of Inams and Cash Grants Act, 1954, cannot be delegated to another person or authority in the absence of statutory provision authorising such delegation. It is further observed that the fact that the Minister has countersigned the notes put up by the Officer on Special Duty . does not necessarily mean that he applied his mind independently to the facts and contentions as he is required to do in exercise of his power to decide the appeal under Section 2-A. The only authority competent to decide an appeal under Section 2-A (2) is the State Government, i.e., the Minister incharge of the department concerned. Where a statute provides a remedy by an appeal to be heard by a State Government, then it should be heard by the Minister concerned, because hearing an appeal is a judicial function of a Minister under a statute. Such .a function cannot be delegated to any other authority or an order passed by the Minister in appeal cannot be authenticated by any person. It must be an order in appeal passed by the person entitled to hear and dispose of the appeal. In the instant case, the appointment of an officer under Section 14(4) cannot be said to be a quasi-judicial to be exercised by the person concerned. The State Government has to appoint a person as provided in Section 14(4) of the Ceiling Act. The Minister concerned may take decision and direct a Desk Officer to authenticate such orders. It is not necessary that such orders must be in writing. If an order is passed by a competent authority, the same can be authenticated by an officer who is empowered under the Rules of Business framed by the Governor to pass an order of the State Government.

12. It is now well settled by the Supreme Court that even the functions and duties which are vested in the State Government by a statute may be allocated to the Ministers by the Rules of Business framed under Article 166, Clause (3). It has been pointed out that when a function is vested by a statute in the State Government, the Statutory provision is to be interpreted with the aid of the General Clauses Act.

13. It has been held by the Supreme Court in Ishwarlal Girdharlal Joshi v. State of Gujarat AIR[1960] S.C. 870, that the validity of the order could not be called in question on the ground that it was not an order made by the Government. It was open to the Government to shelter itself behind the constitutional protection provided by Article 166(2) and the barrier could not be pierced by the appellants by merely stating that the Government had not passed the orders or made the necessary determination without alleging definite facts. In addition to the constitutional protection, there was also the presumption of regularity of official acts. Orders of Government, whether at ministerial or gubernatorial level, were all issued in the same form and the constitutional protection as well as presumption both covered the case.

14. Section 3(60) of the General Clauses Act, 1897, defines 'State Government' as follows:

(a) ....

(b)------

(c) As respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union Territory, the Central Government.

15. A Statutory function of the State Government thus becomes a function of the Governor, and the business of the State Government under Article 166(3) includes such statutory business. It is therefore, competent for the Governor to allocate such statutory functions, including the matters relating to his subjective satisfaction to the Ministers by making rules under Article 166(3). The expression 'Business of the Government of the State' is wider than the expression 'executive action of the Government of the State', which is used in Clause (1) of Article 166. Hence, Clause (3) relates to all business of the State, and not merely its 'executive action'. It thus comprises all functions which the Governor is to exercise with the aid and advice of Council of Ministers. Thus the power to appoint an Enquiry Officer or a Tribunal under Section 14(4) of the Ceiling Act can be said to be a power of the Governor to appoint a Desk Officer and the Governor in exercise of his power under Clause (3) of Article 166 can allocate such function to the Minister or any other authorised person to carry out the said functions. In view of this position, it is not possible to accept the contention of Mr. Vaishnav that the order or authorisation authenticated by the Desk Officer in the name of the Governor of Maharashtra is not valid or contrary to law. It is, therefore, the contention of Mr. Vaishnav must fail. In this writ petition no other point is raised except the point discussed above.

16. Accordingly, the rule is discharged. In the circumstances of the case, there will be no other order as to costs.


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