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R. Manickam and ors. Vs. the Union Territory of Pondicherry, Represented by Chief Secretary to Government of Pondicherry and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Reported in(1978)1MLJ28
AppellantR. Manickam and ors.
RespondentThe Union Territory of Pondicherry, Represented by Chief Secretary to Government of Pondicherry and
Cases ReferredGhousia Begum v. Union Territory
Excerpt:
.....the administrator who acts on behalf of the central government as the delegate of the president. union territory, pondicherry air1975mad345 .if that be so, then it is the lieutenant-governor who should be satisfied concerning section 4(1) notification as well as section 6 declaration. in the instant case in so far as the state government alone has been satisfied and there is nothing to indicate that the administrator, viz. , the lieutenant-governor was satisfied which satisfaction alone is material, the notification under section 4(1) as well as the declaration under section 6 must be held to be illegal and invalid. (1) the president may make regulations for the peace, progress and good government of the union territory of- (a) the andaman and nicobar islands; (provided that when any..........proceedings the following grounds are urged in the affidavit.(1) the act was extended to the union territory of pondicherry by the pondicherry (laws) regulation, 1963. the appropriate government under the act would mean the central government concerning an acquisition for the purpose of the union. in relation to the acquisition of the land for any other purpose the appropriate government concerning the union territory of pondicherry is the central government. the powers and functions of the central government have been delegated to the administrator, vis., the lieutenant-governor of pondicherry. therefore, it is the lieutenant-governor who should be satisfied before the issue of section 4(1) notification and section 6 declaration . in the instant case the petitioners believe it to.....
Judgment:
ORDER

S. Mohan, J.

1. All these three writ petitions can be conveniently dealt with under a common judgment. It would be sufficient to note the facts in W.P. No. 6480 of 1975 alone, since the same question of law arises in all these cases.

2. The Government of Pondicherry issued a notification under Section 4(1) of the Land Acquisition Act of 1894 (here in after referred to as the Act) for acquiring certain lands in Korkadu village for the purpose of providing house-sites for Harijans. The said notification included the petitioner's lands. The notification is on the date, 9th of April, 1974. The petitioner filed the objections for the statutory enquiry under Section 5-A of the Act. Those objections were overruled and Section 6 declaration was issued in G.O. Ms. No. 28, dated 16th July, 1975. It was published in the Gazette of the Government of Pondicherry on 29th July, 1975. The petitioners were served with the notice under Sections 9 and 10 of the Act. On a request made by the petitioners the enquiry as adjourned to 16th October, 1975. It is under these circumstances the writ petition has been preferred.

3. In attacking the land acquisition proceedings the following grounds are urged in the affidavit.

(1) The Act was extended to the Union Territory of Pondicherry by the Pondicherry (Laws) Regulation, 1963. The appropriate Government under the Act would mean the Central Government concerning an acquisition for the purpose of the Union. In relation to the acquisition of the land for any other purpose the appropriate Government concerning the Union Territory of Pondicherry is the Central Government. The powers and functions of the Central Government have been delegated to the Administrator, vis., the Lieutenant-Governor of Pondicherry. Therefore, it is the Lieutenant-Governor who should be satisfied before the issue of Section 4(1) notification and Section 6 declaration . In the instant case the petitioners believe it to be true and state that all the decisions were taken by the Minister-in-charge. Therefore it is illegal.

(2) The impugned notification under Section 4(1) has not been published in the name of the Administrator.

(3) There has not been a proper application of the mind since earlier it was decided not to acquire these lands as they are unsuitable for provision of house-sites for Harijans.

4. In the counter-affidavit it is stated that the expression 'State Government' is defined in Section 3(60) of the General Clauses Act, 1897 as follows:

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.

Under Section 3(8) of the said Act, the Central Government shall, 'in relation to the administration of Union Territory, the administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution' (and under Section 2(i)(a) of the Union Territories Act).

In the notifications under Sections 4 and 6 the words 'Lieutenant-Governor' have been specifically mentioned. The petitioner's contention that the notifications refer to the satisfaction of the Government not to the Lieutenant-Governor does not seem to be correct, since in the 4(1) notification and in the declaration under Section 6, special mention of the term 'Lieutenant-Governor' has been made. Further the order is issued in terms of Section 4(1) of the Land Acquisition Act. In the instant case the notification states that the Government of Pondicherry is satisfied that the land is needed for a public purpose. The notification after reciting the satisfaction of the Government states that the Lieutenant-Governor has made the appointment of Deputy Collector under the Land Acquisition Act. It is clear that the order is one made in the name of the Administrator (Lieutenant-Governor) of Pondicherry and it is authenticated by the Undersecretary to Government as provided in the rules framed under Section 46(3) of the Government of Union Territories Act, 1963. In terms of that Section the order so authenticated shall not be called in question on the ground that it is not made by the Administrator. Further as a matter of fact the order has been issued under the authority of the Chief Minister and Minister concerned who are authorised to dispose of the matter according to the business rules of the Government of Pondicherry. It is further submitted that the notification as published in the Gazette contains reference at the opening 'The Government of Pondicherry' which is the administration of the Union Government through the Lieutenant-Governor and it refers twice to the Lieutenant-Governor as authorising the Deputy Collector and appointing him as Collector for the purpose of this Act. It is signed by the Under-Secretary to Government. The notification C.S.R.I., dated 1st July, 1963 and G.S.R. No. 4, dated 2nd May, 1967 containing the rules made by the Administrator under Section 46(3) of the Government of Union Territories Act, 1963 state that the orders and other instruments made and executed in the name of the Administrator (Chief Commissioner) shall be authenticated by the signature of the Chief Secretary, Deputy Secretary, or Under-Secretary, to the administration. Hence the notification under Section 4(1) of the Land Acquisition Act is legal and valid.

5. Mr. K.K. Venugopal, learned Counsel for the petitioner draws my attention to Articles 239, 239-A and 240 of the Constitution of India. The Land Acquisition Act was extended to the Union Territory of Pondicherry under the Pondicherry (Laws) Regulation Act. Section 6 of that Act in laying down the rules of construction under Clause (b) states that any reference to the State Government shall be construed as a reference to the Central Government including a reference to the Chief Commissioner. The Land Acquisition Act, when it talks of appropriate Government in the instant case concerning the Union Territory of Pondicherry, would be only the Central Government. The State Government cannot include Union Territory. In support of this submission, learned Counsel relies on T.M. Kanniyan v. Income-tax Officer, Pondicherry 1. : [1968]68ITR244(SC) ; S.K. Singh v. V.V. Giri : [1971]2SCR197 . and H.L. Rodhey v. Delhi Administration : AIR1969Delhi246 . The General Clauses Act under Section 3(8)(b)(iii) refers to Central Government in relation to the administration of a Union Territory, in this case, Pondi cherry, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution. Therefore, it is well settled that it is the Administrator who acts on behalf of the Central Government as the delegate of the President. In support of this submission, reliance is placed on Ghousia Begum v. Union Territory, Pondicherry : AIR1975Mad345 . If that be so, then it is the Lieutenant-Governor who should be satisfied concerning Section 4(1) notification as well as Section 6 declaration.

6. Again under the Union Territories Act, Section 18 speaks of the extent of legislative power. Section 21 resolves the inconsistency between laws made by Parliament and laws made by Legislative Assembly. Section 44 provides for a Council of Ministers, to aid and advise the Administrator in the exercise of his functions with respect to which the Legislative Assembly has power to make laws. Section 46 speaks of conduct of business which could be done by the Presidential allocation through rules of business to the Ministers. None of the above provisions can be of any assistance to contend that the State Government could exercise its satisfaction. Nor again can Rule 46 be relied on since those rules applied only to business of State Government. In the instant case in so far as the State Government alone has been satisfied and there is nothing to indicate that the Administrator, viz., the Lieutenant-Governor was satisfied which satisfaction alone is material, the notification under Section 4(1) as well as the declaration under Section 6 must be held to be illegal and invalid.

7. In countering these submissions, Mr. V.K. Thiruvenkatachari appearing for the Government of Pondicherry submits as under: In a Union Territory there is only Central Government, because it is not a State. The entire executive power belongs to the Union. The extent of the executive power is relatable to the Parliament's powers to make laws under Article 246 of the Constitution. When Article 230 says, the Union Territories will have to be administered by the President, it means the Central Government. It has been so laid down in Shamsher Singh v. State of Punjab : (1974)IILLJ465SC , and Union of India v. Sripathi Ranjan Biswas : (1975)IILLJ363SC .

8. When there is a delegation, the Lieutenant-Governor occupies the place of the President so far as delegated matters are concerned. For what is not delegated, the Union Government can pass orders. Concerning those matters which were not delegated there are two aspects: (1) The reserve field or what is called the non-ministerial field. In such a case, the Administrator will work as an Officer of the Central Government. (2) Regarding Ministerial field, he will act on the advice of the Council of Ministers. The Ministerial field is relatable to Lists II and III of 7th Schedule. The subject of land acquisition fails under item 42 of List III (Concurrent list).

9. When Article 239 speaks of 'save as otherwise provided', it would include the Government of Union Territories Act of 1963. Apart from the fact that the business of the Government could be exercised by the allocation of such business to the Ministers under Section 50 of the said Act, the Administrator and the Council of Ministers shall be subject to the general control of the President. The Lieutenant-Governor is the representative of the President. Those powers can be exercised through the Council of Ministers. The delegation under Article 239 of the Constitution Is to bring in the Administrator. When Section 2(8)(b)(iii) talks of the Central Government, it is the Government of Pondicherry acting through the Administrator.

10. Added to this, there is also S.R.O. No. 3165, dated 5th November,.1973 which enables the Administrator to act concerning the matters under the Land Acquisition Act, which power again could be exercised by the Administrator with the aid and advice of the Cabinet of Pondicherry.

11. In reply Mr. K.K. Venugopal, argues the S.R.O. dated 5th November, 1963 by which the power is delegated to the Administrator would mean the Administrator can act for and on behalf of the President not on the aid or advice of the Cabinet.

12. Even assuming the Business Rules apply there are no standing orders under Rule 46 except in regard to conditions of service of the civil service.

13. In order to appreciate the point in controversy it is very necessary for me to advert to the relevant provisions of law, both under the Constitution and also under the various statutes. Part VIII of the Constitution deals with the Union Territories. A reading of the Article 239 shows that every Union territory (Union Territory of Pondicherry) shall be administered by the President, through an Administrator. The Administrator in this case is the Lieutenant-Governor. Article 239-A which was introduced by the 14th amendment states:

(1) Parliament may be law create for any of the Union Territories of (Goa, Daman and Diu, (Pondicherry, Mizoram and Arunachal Pradesh)....

(a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or

(b) a Council of Ministers,

or both with such constitution, powers and functions, in. such case, as may be specified in the law.

(2) Any such law as is referred to in Clause (1) shall not be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.

It is by virtue of this provision, the Parliament passed the Government of Union Territories Act, 1963 (Central Act XX of 1963). Again Article 240 reads:

(1) The President may make regulations for the peace, progress and good Government of the Union Territory of-

(a) the Andaman and Nicobar Islands;

(b) Lakshadweep;

(c) Dadra and Nagar Haveli;

(d) Goa, Daman and Diu;

(e) Pondicherry;

(f) Mizoram;

(g) Arunachal Pradesh:

(Provided that when any body is created under Article 239-A to function as a Legislature for the (Union Territory of Goa, Daman and Diu, (Pondicherry, Mizoram or Arunachal Pradesh), the President shall not make any regulation for the peace, progress and good Government of that Union Territory with effect from the date appointed for the first meeting of the Legislature:

(Provided further that whenever the body functioning as Legislature for the Union Territory of Goa, Daman and Diu, (Pondicherry, Mizoram or Arunachal Pradesh) is dissolved, or the functioning of that body as such Legislature remains suspended on account of any action taken under any such law as is referred to in Clause (1) of Article 239-A, the President may, during the period of such dissolution or suspension, make regulations for the peace, progress and good Government of that. Union Territory).

(2) Any regulation so made may repeal or amend any Act made by Parliament or (any other law) which is for the time being applicable to the Union Territory and, when promulgated by the President, shall have the same force and effect as an Act of Parliament which applies to that territory.

This Article may be referred to for the sake of completion.

14. On 16th August, 1962 the de jure transfer of the Union Territory of Pondicherry took place. By Central Act XLIX of 1962, Pondicherry (Administration) Act, 1962 making provision for the administration of Pondicherry was passed. By virtue of the 14th amendment passed on 28th December, 1962, Pondicherry was included as a Union Territory. On 1st July, 1963 Act XX of 1963 was brought into force in Pondicherry.

15. By Pondicherry (Laws) Regulation which was promulgated in exercise of the powers conferred by Article 240 of the Constitution by the President, the Land Acquisition Act was one of the Acts occurring under the first schedule. Section 2 of the Act, when it speaks of an Act refers to an Act specified in the First Schedule. It is by virtue of this Pondicherry (Laws) Regulation, 1963, the Land Acquisition Act was extended to Pondicherry.

16. Section 6 of the said Act in Sub-section (1)(b) states that any reference to the State Government shall be construed as a reference to the Central Government and also as including a reference to the Chief Commissioner.

17. Turning to the Land Acquisition Act, Section 3(ee) states the expression 'appropriate Government' means, 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. The State Government cannot include Union Territories.

18. In T.M. Kanniyan v. Income-tax Officer, Pondicherry : [1968]68ITR244(SC) , it was laid down in paragraph 4 as follows:

In Ram Kishore Sen v. Union of India : [1966]1SCR430 , it was pointed out that having regard to Article 367, the definition of 'State' in Section 3(58) of the General Clauses Act, 1897 applies for the interpretation of the Constitution unless there is anything repugnant in the subject or context. Under that definition, the expression 'State' as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956 'shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory'. But this inclusive definition is repugnant to the subject and context of Article 246. There, the expression 'State' means the States specified in the First Schedule.

Having regard to the definition of 'appropriate Government' occurring under Section 3(ee) of the Act and in the light of the above judgment, it only refers to the Central Government. The Lieutenant-Governor exercises the power of the President as his delegate. Therefore, the question that arises for consideration is, when the President exercises such a power given to his delegate, viz., the Lieutenant-Governor, is it necessary that the Lieutenant-Governor, alone should act or can that business be transacted through the Ministers who form the Cabinet, under Section 44 of the Central Act XX of 1963 which business can be allocated by the President under Section 46? There is absolutely no difficulty in holding if the acquisition of land is a business of the State Government, the satisfaction of the Government of the Union Territory of Pondicherry, would be sufficient. On the contrary, if it is the business of the Central Government, then only this question arises. It is true when there is a delegation, the Lieutenant-Governor occupies the place of the President. It is also true concerning those powers for what is not delegated, the Union Government can pass orders. Under Article 239 of the Constitution every Union Territory shall be administered by the President. The President in this context means the Union Government. In Shamsher Singh v. State of Punjab : (1974)IILLJ465SC , it was laid down in paragraph 25 as follows:

The executive power of the Union is vested in the President under Article 53(1). The executive power of the State is vested in the Governor under Article 154(1). The expression 'Union' and 'State' occur in Articles 53(1) and 154(1) respectively to bring about the federal principles embodied in the Constitution. Any action taken in the exercise of the executive power of the Union vested in the President under Article 53(1) is taken by the Government of India in the name of the President as will appear in Article 77(1). Similarly, any action taken in the exercise of the executive power of the State vested in the Governor under Article 154(1) is taken by the Government of the State in the name of the Governor as will appear in Article 166(1).

Having regard to that, the President means the Union Government.

19. Again in Union of India v. Sripati Ranjan Biswas : (1975)IILLJ363SC , it was held in paragraph 9 as follows:

In the history of the entire background of the constitutional development of our country, when the Constitution conclusively contemplates a constitutional President it is not permissible nor is it even intended to invest upon the President a different role of a ruling monarch. Any reference to the President under any rule made under the Constitution must needs be to the President as the constitutional head, as envisaged in the Constitution acting with the aid and advice of the Council of Ministers.

This ruling also leads only to the same conclusion. The extent of the executive power of the Union under Article 73 of the Constitution covers all matters with respect to which the Parliament has got power to make laws. Under Article 246 the Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I. I am unable to accept the argument of Mr. V.K. Thiruvenkatachari that this is a case in which because the Legislature of a State has the power to make laws concerning those items enumerated in List Ill of Schedule VII and further because item 42 of List III states acquisition and requisitioning of property and thereby embraces the Land Acquisition Act, with respect to this matter it is the Council of Ministers which can deal with this matter and their satisfaction under Section 4(1) and under Section 6 would be sufficient. If really what is contemplated is an acquisition for the purpose of the Union, it is the Central Government alone that can act. The Union territories being directly administered by the President through the delegate of lieutenant-Governor, it is his satisfaction that is material. As rightly contended by Mr. K.K. Venugopal, neither Section 44 nor Section 46 of the Central Act XX of 1963 would be of any assistance to the respondent. Nor again can Section 50 be of any help, since that Section speaks of the relation of the Administrator and his Ministers to the President.

20. The Rules of Business of the Government of Pondicherry 1963 which were sought to be pressed into service by the respondent cannot enable the State Government to deal with a matter of this kind since they relate only to the business of the State Government.

21. The S.R.O. No. 3165, dated 5th November, 1963 reads as follows:

In pursuance of Clause (1) of Article 239 of the Constitution the President hereby directs that, subject to his control and until further orders the Administrator of the Union territory of Pondicherry shall exercise the powers and discharge the functions of the Central Government under-

(i) Land Acquisition Act, 1894(1 of 1894) except those under the provisos to sub-Section (i) of Section 55 and (ii) The Land Acquisition (Companies) Rules, 1965 within the Union Territory.

This undoubtedly would mean that the Administrator is acting on behalf of the President. This is not a matter in which the Administrator is either aided or advised by the local Cabinet. Even assuming the business rules apply, there are no standing orders in Rule 46. That rule states as follows:

The Administrator may, by standing orders in writing, regulate the transaction and disposal of the business relating to his executive functions referred in Sub-Rule (2) of Rule 4:

Provided that the standing orders shall be consistent with the provisions of this Chapter, Chapter V and the instructions issued by the Central Government from time to time:

Provided further that in the exercise of his functions with respect to the property of the Union situated within the Union Territory, the Administrator shall act in consultation with no Council

A reference to Sub-rule (2) of Rule 4 makes it clear that excepting the business of the Government in relation to matters in respect of which Section 44 of the Central Act XX of 1963, would apply the remaining business has to be transacted in accordance with Chapter IV. There are no standing orders under Rule 46 concerning land acquisition. Therefore, the rules of business again do not enable the State Government to deal with this matter.

22. Turning to Section 3(8)(b)(iii) of the General Clauses Act, that states in defining the Central Government as the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution. That again only refers to the Administrator. The President of India, while administering the Union Territory of Pondicherry by virtue of Article 239 does not act as the head of the Central Government. It is in this context S.R.O. No. 3165 dated 5th November, 1963 becomes very important to which I have earlier referred to.

23. Lastly, it is necessary for me to note the decision reported in Ghousia Begum v. Union Territory, Pondicherry, : AIR1975Mad345 which helps the petitioner a good deal. Though that case related to an acquisition for the Posts and Telegraphs Department for the construction of an auto-exchange which is a purpose of the Union of India, in dealing with the scope and extent of the powers of the Government of Pondicherry, it was held at page 356:

The President, acting under Article 239 of the Constitution, cannot therefore delegate the powers and functions; of the Central Government under the Land Acquisition Act for the acquisition of the land in question for the purpose of an Auto-Telephone Exchange for the Posts and Telegraphs Department at Pondicherry to the District Governor of Pondicherry, an Administrator appointed under that Article. It would follow that the notification under Section 4(1) of the Land Acquisition Act made for the purpose by the Lieutenant-Governor of Pondicherry and the further proceedings taken by the Government of that Union Territory in pursuance of that notification are not valid

On a consideration of all the above, I hold that the authority to be satisfied is the Lieutenant-Governor of Pondicherry for the purpose of Section 4(1) and Section 6 of the Land Acquisition Act. It has not been shown in this case there was any such satisfaction. On the contrary, it is admitted by the respondent that it is the concerned Minister who, was satisfied. Therefore, the proceedings must be held to be illegal.

24. Accordingly W.P. Nos. 6480 and 6481 of 1975 and 43 of 1976 will stand allowed with costs. Counsel's fee, Rs. 250 one set.

Writ Petition No. 688 of 1975:

25. Applying the ratio of my judgment in W.P. No. 6480 of 1975, this writ petition also will stand allowed. However, there will be no order as to costs.


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