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Shambhu Nath Ghosh and ors. Vs. Bejoy Lakshmi Cotton Mills Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. Nos. 397 and 398 of 1958
Judge
Reported inAIR1959Cal552
ActsConstitution of India - Article 166, 166(2) and 166(3); ;West Bengal Land Development and Planning Act, 1948 - Sections 4, 4A(2), 5, 5(1), 5(2) and 6; ;West Bengal Government - Rules 19 and 20
AppellantShambhu Nath Ghosh and ors.
RespondentBejoy Lakshmi Cotton Mills Ltd. and ors.
Appellant AdvocateSir S.M. Bose, Adv. General, ;R. Choudhury, ;Smriti Kr. Roy Choudhury, ;J. Majumdar and ;Somen Ch. Bose, Advs.
Respondent AdvocateAtul Chandra Gupta and ;Birendra N. Banerji, Advs. for No. 1, ;J. Majumdar and ;Somendra Ch. Bose, Advs. for Nos. 2, 3 and 4, S.M. Bose, Adv. General, ;R. Choudhury and ;Smriti Kr. Roy Choudhury, Adv.
Cases ReferredSibnath Banerjee v. A.E. Porter
Excerpt:
- das gupta, c.j. 1. these two appeals are against the decision of sinha j., directing the issue of an appropriate writ for setting aside and quashing a notification of 4-2-1955 and a declaration of 21-7-1956 under s. 4 and s. g respectively of the west bengal land development and planning act and also the agreement entered into between the society of farmers and rural industrialists and the government as regards the payment of compensation for the acquisition of the lands. these orders were made on the application of bejoy lakshmi cotton mills ltd. to whom the lands acquired under these proceedings belonged. it was contended by the applicant that the sanction of a scheme, which is an essential prerequisite of an order for declaration, had not been given in accordance with law. several.....
Judgment:

Das Gupta, C.J.

1. These two appeals are against the decision of Sinha J., directing the issue of an appropriate Writ for setting aside and quashing a Notification of 4-2-1955 and a declaration of 21-7-1956 under S. 4 and S. G respectively of the West Bengal Land Development and Planning Act and also the agreement entered into between the Society of Farmers and Rural Industrialists and the Government as regards the payment of compensation for the acquisition of the lands. These orders were made on the application of Bejoy Lakshmi Cotton Mills Ltd. to whom the lands acquired under these proceedings belonged. It was contended by the applicant that the sanction of a scheme, which is an essential prerequisite of an order for declaration, had not been given in accordance with law. Several other objections to the proceedings taken in the application were not pressed. One point that the notification was bad in law as there had been no satisfaction of the State Government in accordance with law and another point that the declaration was bad on the similar ground that there had been no satisfaction of the State Government in accordance with law were, however, raised at the trial and dealt with by the learned Judge. The learned Tudge came to the conclusion that the sanction of the scheme or the satisfaction as required under Section 4 and Section 6 of the Act was not by or of the Government, in accordance with law, and made the orders mentioned above.

2. Section 4 of the West Bengal Land Development and Planning Act under which the notification was made, is in these words:

'The State Government may, by notification in the Official 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'.

Section 5 provides in its first sub-section that the State Government may direct the prescribed authority that is the Land Development Committee or, if it so thinks fit in any case, authorise any Company or local authority, to prepare, in accordance with the rules, a development scheme in respect of any area for which a notification under Section 4 has been published. In its second sub-section, Section 5 provides that a development scheme submitted to the State Government under Sub-section (1) may, after taking into consideration any report submitted under Sub-section (2) of Section 4A, be sanctioned by it either without any modification or subject to such modifications as it may deem fit. Section 6 provides that when a development scheme is sanctioned under Sub-section (2) of Section 5 and the State Government is satisfied 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 Government. There can be no doubt therefore that the essential prerequisite of a notification under S. 4 is that the Government is satisfied that any land in the area is needed or likely to be needed for a public purpose and that in the absence of such satisfaction, the notification is invalid in law. There can also be no doubt that the essential prerequisites of a declaration under Section 6 are first that a development scheme has been sanctioned under Sub-section (2) of Section 5, that is, sanctioned by the State Government after taking into consideration any report submitted under Sub-section (2) of Section 4A; and secondly, that the Government is satisfied that any land in the notified area for which such scheme has been sanctioned is needed for the purpose of executing such scheme. In the absence of any of these prerequisites, the declaration is invalid in law.

3. On behalf of the applicant, it was urged that in order that a sanction may amount in law to a sanction by the Government, it has to be a sanction by the Minister in charge of the Department and similarly, satisfaction to amount in law to satisfaction of the Government must be satisfaction of the Minister-in-Charge. Though the 'State Government' under the General Clauses Act, means the Governor it is not argued that the Governor's personal satisfaction, or sanction is required. Mention has to be made in this connection of the provisions in Article 154 of the Constitution that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution and the provisions in Article 166(3) of the Constitution that 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 in so far as it is not business with respect to which the Governor is by or under this constitution required to act in his discretion. The matters under the Land Development Act in which the executive action has, in the present case, been taken is admittedly not business with respect to which the Governor is required to act under the Constitution in his discretion. It has been established by the order made by the Governor of West Bengal under Article 166(3) that the business of the Government in connection with these matters has been allocated to the Minister in charge of the Land and Land Revenue Department. It is in view of this position and perhaps also in view of the position under the Constitution that the Governor acts in accordance with the advice of the Ministers, that the learned counsel for the applicant agrees that the sanction by the Minister and satisfaction of the Minister would be sufficient in law. His contention, however, is that the Constitution does not contemplate or permit delegation by the Minister of such duties of according sanction or of being satisfied, to any person.

4. Before considering this contention, it is necessary to consider the argument which, has been addressed to us on behalf of the appellants that as the notification and declaration have been authenticated in a manner specified by rules made by the Governor in accordance with the provisions of Article 166(2), it is not open to the Court to question the validity of the notification or declaration. This argument is based on the provision in Article 166(2) that 'the validity of an order or an instrument which is so authenticated, shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor,' Quite clearly, however what the authentication makes conclusive, is that the order has been made by the Governor. Whether in making the Order the Governor has acted in accordance with law remains open. There is no doubt that where the authentication order states, as it does in the present case, that the Governor is satisfied of a certain matter, the presumption is that the Governor has been so satisfied. This, however, is only a presumption and can be rebutted.

5. Clear authority for this view is to be found in the decision of the Privy Council in Emperor v. Sibnath Banerji, 72 Ind App 241: (AIR 1945 PC 156).

6. Dealing with a similar contention under Section 59(2) of the Government of India Act which provides

'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 question on the ground that it is not an order or instrument made or executed by the Governor.'

that the orders of detention which had to be considered in that case having been duly authenticated, could not be called in question, their Lordships said:

'In the opinion of their Lordships, the contention of the Crown goes too far, as the sub-section only relates to one specified ground of challenge, namely, that the order or instrument was, not made or executed by the Governor. Their Lordships agree with the statement by the learned Chief Justice of the Federal Court namely, 'It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate.'

7. I have, therefore, come to the conclusion that while the statement in the notification and the declaration that the Governor was satisfied on certain things, does raise a presumption that he was so satisfied, it is nothing more than a presumption and that presumption can be rebutted by evidence.

8. In the present case the applicant has relied on materials produced in the court on behalf of the State Government, to rebut that presumption. It was frankly conceded before us by the learned Advocate General that these matters as regards sanction or satisfaction did not at any stage receive the attention of the Minister in charge. An order made by the Secretary of the Department on the basis of standing orders made by the Minister in charge, which standing order itself had been made by the Minister on the authority conferred on him by the Rules of Business framed by the Governor under Article 166(3) of the Constitution, is said to produce the position that the business of the Government in so far as it consists in giving sanction under Section 5(2) or being satisfied under Section 4 or Section 6 of the Land Development Act, has been delegated by the Minister to the Assistant Secretary of the Department. The first question is, as already indicated, can there be such delegation in law? On behalf of the applicant Dr. Gupta contended that it would be unreasonable and improper to recognise such a power of delegation unless it is clearly conferred by the constitution and, according to him, there is no clear conferment. It appears that in Shyamaghana Roy v. The State, : AIR1952Ori200 , the Orissa High Court held in considering whether there had been satisfaction of the Provincial Government in connection with an order of detention that while under the Rules of Business made by the Governor the satisfaction of the concerned Minister must be taken to be the satisfaction of the Government, there was no legal provision at all for delegation of that responsibility from the Minister in charge to the Secretary. The learned Chief Justice of Orissa High Court observed:

'Sub-article (3) of Article 166 of the Constitution makes it clear that the allocation of the business of the Government is to be amongst the Ministers of the Government. A Secretary cannot be allocated any such business, at any rate, no such business which involves a statutory responsibility though by virtue of the rules made for the more convenient transaction of business he can form an intermediate link.'

9. It appears that the attention of the learned Judges of the Orissa High Court was not drawn to the fact that this exact point whether there can be such delegation by means of the Rules of Business of the duty of satisfaction to a Secretary to the Government, was the very question on which the Chief Justice of the Federal Court disagreed with the learned Judges in Sibnath Banerjee's case while the other Judges held that there could be no such delegation. The learned Chief Justice held that such delegation could be and was, in that particular, case, actually made by the Rules of Business. The Privy Council agreed with the learned Chief Justice. In that case a further question had to be considered--whether the special mqans of delegation provided in Sub-section (5) of Section 2 of the Defence of India Act operated to exclude other ways of delegation. The Privy Council held that it did not and that such matters as those which fell to be dealt with by the Governor under Rule 26 of the Defence of India Rules, under which certain orders can be made if he was satisfied of some matters, could be dealt with by him 'in the normal manner in which the executive business, of the Provincial Government are carried on under the provisions of Chapter 2 of part 3 of the Act of 1935 and in particular under the provisions of Section 49 and the Rules of Business made under Section 59'. It may be mentioned that Section 49 of the Government of India Act, 1935 contained the provision

'The executive authority of a Province shallbe exercised on behalf of or by the Governor, eitherdirectly or through an officer subordinate to him,'

a provision which now appears in Article 154 of theConstitution of India. Section 59(3), as alreadypointed out, contained a provision about the makingof Rules of Business by the Governor for the moreconvenient transaction of the business of the Provincial Government, the provision corresponding to what now appears in Article 166(3) of the Constitution.

10. It has to be remembered further that the alleged satisfaction on which the Government relied, as regards the several orders of detention which had to be considered in Sibnath Banerji's case, was of the Secretary to the Government. In some ot the cases the Privy Council held that the materials did not show that the Secretary himself had been satisfied by applying his mind to the facts. In these cases the orders of detention were set aside on the basis that there was no satisfaction of the Governor. In the other cases where the Privy Council held that the Secretary himself had been satisfied, his satisfaction was taken to amount to the satisfaction of the Governor as required under Rule 26 and the detention orders were confirmed.

11. I do not think that the fact that Sibnath Banerji's case was decided on the provisions of the Government of India Act makes any difference. The provisions in the Constitution which we have to consider are in identical terms.

12. I am of opinion on the authority of Sibnath Banerji's case that the duty of according sanction or being satisfied, can be delegated by the Minister to whom the relevant business of the Government ot the State has been allocated by the Governor by the Rules of Business, provided such delegation is in pursuance of authority given by the Rules of Business.

13. The question is whether there has been delegation in the present case, of the duty to be satisfied under Section 4, the duty to give sanction under Section 5(2) and the duty to be satisfied under Section 6, to the Assistant Secretary, Land and Land Revenue Department of the Government, in pursuance of authority given by the Rules of Business.

14. Rules 19 and 20 of the Rules of Business as framed by the Government of West Bengal under Clause 3 of Article 166 of the Constitution of India are relevant for our present purpose. They are in these words:

'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:

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 rules and which were in force in the department in charge of such Minister immediately 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 Land Revenue Department, in which Department the business of the Government in connection with all matters under the Land Development Act had to be transacted, did issue a standing order under these two Rules 19 and 20. The second paragraph mentions a number of matters which 'shall be brought to the Minister's notice before the issue of orders'. Item 18 of this list is in the following words:

'All cases proposed to be taken up by the Land Planning Committee set up under the Land Development and Planning Act.'

Item 29 runs thus:

'All cases relating to land acquisition by companies or industrial concerns or by Government under the Land Acquisition Act before there is notification under Section 4 and agreement under Section 41.'

15. Paragraph 5 of the standing order is in the following words:

'The Secretary may permit the Deputy or Assistant Secretaries to dispose of or submit to me 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.'

We find further that on the basis of this paragraph 5 of the standing order, the Secretary of the Land Revenue Department made the following order:

'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 case 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 the Secretary.' The contention on behalf of the appellant is that this order by the Secretary was sufficient to give legal authority to the Assistant Secretary, Rai Saheb Samanta, who was in charge of these matters in the office organisation to give sanction and accord satisfaction and the legal decision would be with that satisfaction and that sanction of the State Government. I would have found no difficulty in accepting this argument were it not for the fact that the provisions of paragraph 5 of the standing order cannot but be read as subject to the special provisions of paragraph 2 of the same order. Indeed the order made by the Secretary itself provides that if any rule or order requires that a case shall be submitted to the Minister-in-Charge, that has to be done by the particular Deputy Secretary or Assistant Secretary or who is in charge. The Secretary's order does not empower the Deputy Secretary or the Assistant Secretary to dispose of such a case without submission to the Minister-in-Charge. It is, therefore, necessary to see whether the case as regards satisfaction under Section 4 or a case as regards sanction under Section 5(2) or a case as regards satisfaction under Section 6 of the Land Development Act was required by paragraph 2 of the standing order made by the Minister to be submitted before him before disposal by the Assistant Secretary in charge. I am clearly of opinion that if these matters are included in any of the items mentioned in paragraph 2 the Assistant Secretary or the Deputy Secretary or the Secretary himself is not empowered in law to dispose of it. The necessary consequence of the words 'shall be brought to my notice for the issue of orders', in my opinion, is that the Minister himself shall decide what orders should be issued in such matters. It is hardly necessary to add that the special provision of paragraph 4 authorising the Secretary to act in urgent cases are not attracted here.

16. According to the learned. Judge, the matters under present consideration namely, as regards satisfaction under Section 4 or 6 or as regards sanction under Section 5(2) are all covered by Item 18 and Item 29 of paragraph 2. I am unable to agree that any of these matters are covered by Item 29. That item deals with cases under the Land Acquisition Act and I am unable to agree that cases under the Land Development Act come within the operation of that item. Item 18 which has already been set out runs thus:

'All cases proposed to be taken up by the Land Planning Committee set up under the Development and Planning Act.'

On the ordinary rules of grammar, these words should be interpreted to mean

'All cases which it fs proposed should be taken up by the Land Planning Committee set up by the Land Development and Planning Act.'

Proposed by whom? The obvious answer, in my view, is ''proposed by the Department of the Government.' When a question of satisfaction under Section 4 is to be considered, there is as yet no proposal by the Department that the matter should be taken up by the Land Planning Committee. When, however, the stage of Section 5 arises and the Government has to decide whether a direction should be given to prepare a development scheme, the Department may either decide to give no such direction or propose that such a direction should be given. As soon as such a proposal is made by the Department, it comes within item 18 so that before the direction itself is given, the matter has to go to the Minister. In my view, it does not cease to be a case under item 18 when the direction has been given but continues to be covered by the item so long as the case is not finally disposed ot. The consequence, in my opinion, is that the matter has to be placed before the Minister for orders first before the direction is given under Sub-section 5(1) and then after a scheme has been submitted it has to be placed again before him for orders whether Government will sanction the scheme and again for orders whether Government is satisfied that any land in a notified area for which the scheme in that area is needed for the purpose of executing such scheme.

17. I have, therefore, come to the conclusion that the duty of being satisfied under Section 6, and the duty of giving sanction under Section 5(2) was not delegated to the Assistant Secretary, or to anybody else, and that these duties had to be performed by the Minister in charge in order that the satisfaction under S. 6 and the sanction under Section 5(2) may amount in law to be satisfaction of the Government, or sanction by the Government respectively.

18. It was admitted before us that the matter was not placed before the Minister in any of these stages. The necessary consequence is that the direction made under Section 5(1) to prepare a scheme, the sanction of the scheme under Section 5(2) and the satisfaction under Section 6 has not been in the eye of law, by or of the State Government,

19. As regards the satisfaction under Section 4 of the Land Development Act, I am unable to agree with the learned Judge that the standing order made by the Minister required this matter to be placed before him. In my opinion, the order made y the Secretary authorising the Assistant Secretary to dispose of certain matters was sufficient to delegate to the Assistant Secretary the duty of being satisfied under Section 4, on behalf of the Government that the lands are needed or likely to be needed for any public purpose.

20. I would, therefore, vary the order made by the learned Judge to this extent only, namely, that the notification under Section 4 of the Land Development Act should not be set aside. With this modification I would affirm the order made by the learned Judge and dismiss these appeals.

21. In Appeal No. 397, the appellant will pay the costs of the appeal to the respondent Bejoy Lakshmi Cotton Mills Ltd., the hearing fee being assessed at Ten Gold Mohurs.

22. In Appeal No. 398, the parties will bear their own costs.

Bachawat, J.

23. The first main question in these appeals relates to the validity of a declaration dated the 21st July 1956 issued in the name of the Governor under Section 6 of the West Bengal Land Development and Planning Act, 1948.

24. Two conditions must be satisfied before a valid declaration can be made under Section 6. Firstly, the Development scheme has to be sanctioned by the State Government under Section 5(2) after taking into consideration the report of the Collector submitted under Section 4A(2). Secondly, the State Government has' to be satisfied under Section 6(1) that any land in the notified area for which the scheme has been sanctioned is needed for the purpose of executing such a scheme.

25. The learned Advocate General contends that the declaration having been executed in the name of the Governor and having been duly authenticated in accordance with Article 166(3) of the Constitution this Court is precluded from considering whether the conditions precedent to the validity of the declaration has been fulfilled. I am unable to agree with this contention. Article 166(2), of the Constitution precludes challenge of an authenticated order issued in the name of the Governor on one ground and on one ground only, namely, on the ground that the order is not an order made or executed by the Governor. It does not preclude challenge of the order on the ground that the condition precedent to the validity of the order has not been fulfilled. On this point Article 166(2) of the Constitution should be given the same construction as was given to the corresponding S. 59(2) of the Government of India Act, 1935 by their Lordships of the Judicial Committee in .

26. There is no doubt a strong presumption that a recital appearing in the authenticated order is correct. The learned Advocate General relies upon the declaration for the purpose of raising the presumption that the conditions precedent to the making of the order have been fulfilled. The declaration certainly contains the recital that it appears to the Governor that the land is needed for a public purpose. There is a presumption that this recital is correct but this presumption may be rebutted. It may be noted that the declaration does not contain a recital that the State Government has sanctioned the development scheme after consideration of the Report of the Collector.

27. The question, therefore, arises whether the State Government duly sanctioned the scheme and was satisfied that the land is needed for a public purpose as required by Sections 5(2) and 6(1). Having regard to the General Clauses Act the State Government means the Governor but it is nobody's case that the Governor personally sanctioned the scheme or that he personally was satisfied that the land is needed for a public purpose. The functions of the State Government relating to the West Bengal Land Development and Planning Act 1948 have been allocated to the Minister-in-Charge of the Land and Land Revenue Department. The learned Advocate General formally conceded before us that the matter regarding sanction and satisfaction at no stage was placed before the Minister-ill-charge of the Land and Land Revenue Department. His case before was that all matters relating to the sanction and satisfaction were considered by the Secretary or the Assistant Secretary to that Department.

28. On behalf of the respondent Mr. Gupta argued that the functions of the State Government relating to the sanction and satisfaction under Sections 5 and 6 of the Act must be discharged by the Minister in person and cannot be delegated to some other subordinate officer. I am unable to accept this contention.

29. The powers vested in the State Government by the Act including its functions relating to sanction and satisfaction under Sections 5 and 6 are executive powers.

30. By Article 154 of the Constitution the executive power of the State is vested in the Governor and has to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. By Article 166(3) the Governor has to make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers or the said business in so far as it is not business with respect to which the Governor is required to act in his discretion. Obviously, the Governor cannot discharge all the functions of his high office in person. He is entitled to act either himself or through officers subordinate to him. By Rules of Business framed under Article 164(3) he may allocate the business of the State amongst his Ministers and by those rules may authorise the Ministers to delegate the executive power of the State to subordinate officers.

31. Articles 154(1) and 166(3) of the Constitution correspond to Sections 49(1) and 59(3) of the Government of India Act, 1935. Under the Government of India Act, 1935 the question arose whether the executive power of the Governor including the matter of satisfaction under Rule 26 of the Defence of India Rules could be delegated by the Governor to subordinate officers. That question was dealt with by their Lordships of the Judicial Committee in . Orders of preventive detention had been issued in the name of the Governor. It was admitted that the Governor had not personally considered any of the cases. Some of the cases had not been considered even by the Minister-in-Charge. Their Lordships held agreeing with the learned Chief Justice of the Federal Court that it was not necessary that a Governor should be personally satisfied as to the matters set out in Rule 26 and that such matters as those which fell to be dealt with by him under Rule 26 could be dealt with by him in the normal manner in which the executive business of the Provincial Government was carried on under the provisions of Chapter II of Part III of the Government of India Act, 1935 and in particular under the provisions of S. 49 and the Rules of Business made under Section 59. Their Lordships also pointed out that the term 'executive' in the broader sense includes both decisions as to action and the carrying out of such a decision. It is to be noted that several detention orders and particularly the order in respect of the detenu Birendra Ganguly (Case No. 19) were made by the Additional Home Secretary Mr. Porter before he received any instruction from the Home Minister, (see the report of this case in Emperor v Sibnath Banerji and 33-36 (of FCR): (at pp. 93-94 and 89-90 of AIR)). It will appear from the report of this case before this Court in Sibnath Banerjee v. A.E. Porter : AIR1943Cal377 that the Rules of Business authorised the Ministers to regulate the business of their departments by standing orders which could provide that in cases of extreme urgency the Secretary could make orders without reference to the Minister concerned, but that all such cases had to be brought to the notice of the Minister at the earliest opportunity. The Home Minister had issued a general standing order in terms of the general rule. Dealing with the question whether Mr. Porter was or could be properly authorised to deal with cases of detention Spens, C. J. observed in :

'I have considered whether in law there is anything to prevent the duty of dealing with these cases being assigned to Mr. Porter, an Additional Secretary, to investigate and report to the Home Minister and act normally on his instructions but in an emergency to act himself. In my judgment there is nothing in law which would prevent this procedure being authorised by the Provincial Government.'

In their Lordships also decided construing Sections 51 and 59 of the Government of India Act, 1935 and the Business Rules that the Home Minister was an officer subordinate to the Governor. Since that case was decided the Government of India Act, '1935 has been repealed and the Constitution has come into force. The Governor can now act in his discretion in very few matters. He has now no functions to discharge in the exercise of his individual judgment. His Ministers are now responsible to the State Legislature. As a constitutional Governor he is now expected to act normally on the advice of his Ministers. Though tile executive power is still exercised in his name, the real executive power is now vested in his Ministers. None the less, the Governor is still the formal and constitutional head of the executive and having regard to the provisions of Articles 164(1), 166(3) and 167 of the Constitution a Minister is in law still an officer subordinate to the Governor.

32. The Governor can exercise the executive power of the State vested in him either directly or through his Ministers and other officers subordinate to him. Subordinate officers may be authorised in accordance with the Rules of Business framed under Article 166 of the Constitution to discharge the executive functions of the Governor. With great respect, therefore, I am unable to agree with the contrary opinion expressed by the Orissa High Court in : AIR1952Ori200 .

33. At the same time it cannot be said that the Governor has exercised the executive power vested in him simply because some order is issued in his name by some subordinate officer. A subordinate officer can exercise the executive power of the State vested in the Governor only if he has been duly authorised to exercise that power on behalf of the Governor.

34. On behalf of the Appellants it is urged that the Secretary and the Assistant Secretary to the Land and Land Revenue Department were duly authorised to discharge the executive functions of the State Government in respect of all matters relating to the West Bengal Land Development and Planning Act, 1948 by the Rules of Business framed under Article 166(3) of the Constitution, and the standing orders made under those Rules.

35. The relevant Rules of Business and the Standing Orders have been already read by my Lord in extenso. By Rule 19 the Minister-in-Charge is entitled to give such directions as he thinks fit for the disposal of the cases in the department. By Rule 20 the Minister is required to arrange with the Secretary what matters or classes of matters are to be brought to his personal notice. The Minister-in-charge issued standing orders under Rules 19 and 20. Paragraph 5 of the Standing Orders entitles the Secretary to permit the Deputy or the Assistant Secretary to dispose of or to submit to the Minister for orders such cases or class of cases as the Secretary may by general or special order direct with the approval of the Minister-in-Charge. A general order was issued under paragraph 5 of the Standing Orders providing that 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. In my opinion this general order does not permit Deputy or Assistant Secretary to dispose of a case where any Rule or Standing Order requires that such case shall be submitted to the Minister-in-Charge. As required by Rule 20, paragraph 2 of the Standing Orders expressly provides that certain matters mentioned therein 'shall be brought to my notice before the issue of orders'. In my opinion, except as provided for in paragraph 4 of the Standing Orders, all matters mentioned in paragraph 2 must be submitted to the Minister-in-Charge for orders and cannot be disposed of without being brought to his notice. Paragraph 4 provides that in cases of extreme urgency requiring the immediate issue of orders the Secretary may at his discretion take such action on behalf of the Minister-in-Charge if that does not permit of his first obtaining the Minister's order. The learned Advocate General does not rely upon paragraph 4 to justify the disposal of the case under consideration without reference to the Minister-in-Charge. Obviously there was no urgency requiring the immediate issue of orders and no action was taken under paragraph 4.

36. In my opinion, the case of sanction under Section 5 and satisfaction under Section 6 of the West Bengal Land Development and Planning Act 1948 is covered by item No. 18 of paragraph 2 of the Standing Order. Item 18 reads thus:

'All cases proposed to be taken up by the Land Planning Committee set up under the Land Development and Planning Act.'

'Proposed' must mean 'proposed by the Department'. When the matter come to the stage of direction under Section 5 of the Act the case is proposed to be taken up by the Land Planning Committee. Under Section 5 the State Government may either direct the prescribed authority or authorise any Company or Local Authority to prepare a development scheme. In the latter case, where the State Government authorises any company or local authority to prepare a scheme, the scheme must in view of Rule 5 of the West Bengal Land Development and Planning Rules be submitted to the State Government through the Land Planning Committee. Therefore, in either case the matter has to be taken up by the Land Planning Committee. Therefore, when the matter comes to a stage of giving directions under Section 5, the case necessarily becomes a case under item 18 of paragraph 2 of the Standing Order. Obviously, the case is not disposed of by the mere proposal that the matter be taken up by the Land Planning Committee. The matter has to come back again to the State Government for the purpose of sanction of the scheme. In my opinion, the case continues to be a case under item 18 so long as the case is not finally disposed of. At no stage of the matter the case came before the Minister-in-Gharge of the Department. Neither the Secretary nor the Assistant Secretary had the power to dispose of the case. Therefore, neither of the two conditions precedent to the making of a valid declaration under Section 6 of the Act was fulfilled. The State Government was not satisfied as required by Section 6 nor did it accord the sanction in accordance with law as required by Section 5.

37. Assuming that the Secretary or the Assistant Secretary had been authorised by the Minister-in-Charge to discharge the function of lie State Government under Sections 5 and 6 of the Act a question may still arise whether such functions are quasi-judicial and if so whether the Secretary or the Assistant Secretary of the Department which proposes to acquire the land could lawfully be authorised to discharge those functions. This question has not been argued and I express no opinion on it.

38. I am satisfied for the reasons given by my Lord that the notification issued under Section 4 of the Act was validly issued. The matter of satisfaction under Section 4 of the Act is not a case covered by item 18 of paragraph 2 of the Standing Order and the Secretary or the Assistant Secretary could, therefore, lawfully discharge the functions of the State Government under Section 4 of the Act.

39. The issues relating to the sanction and satisfaction by the State Government and as to the authority of the Secretary and the Assistant Secretary to the Department to dispose of the case have not been clearly raised in the petition or in the affidavit filed on behalf of the petitioners. Sinha J., however, allowed these issues to be raised and went into them apparently without any objection by the parties. The learned Advocate General did not complain before us that the issues were not properly raised. His argument was that the issues should be answered in favour of the Appellants, We have, therefore, to decide the Appeals on the footing that the issues were properly raised and gone into by Sinha J

40. I concur in the order made by my Lord.


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