PETITIONER: ARNOLD RODRICKS & ANR. Vs. RESPONDENT: STATE OF MAHARASHTRA & ORS. DATE OF JUDGMENT: 14/03/1966 BENCH: ACT: The Commissioners of Divisions Act, 1957 (Bom. Act 8 of 1958). ss. 3(3) and 3(4)-Validity of-Delegation of powers to State Government whether excessive. Land Acquisition Act (1 of 1894) s. 3(f)(2) introduced by Bombay Amendment Act 35 of 1953-Amended definition of 'public purpose' whether valid. HEADNOTE: The office of commissioner was abolished in Bombay State in 1950 but it was revived in 1958 by the Commissioners of Division Act passed by the Bombay Legislature. The Schedule to the Act amended various enactments for the purpose of conferring powers on Commissioners thereunder. Sections 3(3) of the Act gave power to the State Government by notification to amend or delete any entry in the Schedule for the purpose of imposing any conditions or restrictions in the exercise of powers and discharge of duties conferred or imposed on the Commissioner or to withdraw them. Section 3(4) of the Act gave the State Government power to confer and impose on the Commissioner powers and duties under any other enactment for the time being in force and for that purpose by notification to amend that enactment. By virtue of this power the State Government of Bombay by notification conferred certain powers under the Land Acquisition Act on the Commissioner and amended the relevant sections of the Land Acquisition Act accordingly. Under the powers so conferred the Commissioner of Bombay, in 1962, commenced land acquisition proceeding in respect of certain lands owned by the appellants, the alleged purpose of the acquisition being "development and utilisation of the said lands as an industrial and residential area". The petitioner filed writ petitions under Art. 32 of the Constitution challenging the acquisition proceedings on the grounds,mainly that (i) s. 3(3) and 3(4) of the commissioners Act constituted excessive delegation of power to the State Government and amounted to abdication of its functions by the State Legislation and that (ii) definition of 'public purpose' as amended by the Bombay Legislature by introducing s. 3 (f) (2) in the Land Acquisition Act was ultra vires. HELD:Per Gajendragadkar, C.J., Hidayatullah and Sikri, JJ.-(i) The object of a. 3(3) of the Commissioners Act is two fold; first to enable the Government to impose any conditions or restrictions on the exercise of powers and discharge of duties on Commissioners and secondly to withdraw them in case it is felt that the Commissioner should not exercise these powers. There can be no objection to this since the State Government is in charge of the administration and the whole object of the Commissioners Act is Co enable it to run the administration as smoothly as possible. The law which the Commissioners or the State Government or the other authorities have to administer remains the same; it is only the authority that is changed. [897 E-G] (ii)It cannot be said that the powers conferred under s. 3(3) and 3(4) on the State Government are unguided. Sections 6 and 7 of the Act 885 886 indicate the kinds of powers which may be conferred on the Commissioner. Further the very nature of the office held by the Commissioner and the duties performed by him up to 1950 would show that it is only the duties of the State Government and of officers of equivalent rank discharging revenue and executive duties which would be conferred on the Commissioner. There can be no difference in principle between the State Legislature inserting a section in an Act enabling the State Government to delegate its power to another authority and the Legislature in view of the change in the administrative set-up conferring power on the State Government to confer not only its own duties on Commissioners but also of other officers performing executive and revenue duties. [895 C-E] (iii)The State Legislature cannot be said to have abdicated its powers in favour of the executive for it has laid down the legislative policy and wisely left it to the State Government to reorganise the administration consequent on the setting up of Commissioners Divisions. The State Government is after all in charge of the administration and it knows specially in view of its previous experience what powers of existing authorities including itself can suitably be conferred on the Commissioners. [897 G898A]: (iv)It was not necessary to get the President's assent for the notification amending the Land Acquisition Act because the amendment of the Act became effective by virtue of the Commissioners Act which had received the assent of the President, and not by virtue of the notification. [898 C] (v) It was riot necessary to decide the question as to the validity of s.(f)(2) of the Land Acquisition Act as enacted by the Bombay State Legislature because the purpose for which the land were acquired in the present case was a 'public purpose' as defined in the Land Acquisition Act as it stood before the amendment made by the Bombay Legislature, and it was not necessary for the respondents to rely on the amendment to sustain in the notification. Public purpose varies with the time and the prevailing conditions in towns like Bombay are such that it is imperative that the State should do all it can to increase the availability of residential and industrial sites. The welfare of a large section of the community is a 'public purpose'. [899 D-E; 902 E] (Vi)There is no law which requires a scheme to be prepared before issuing notifications under ss. 4 and 6 of the Land Acquisition Act. [Desirability of preparing such a scheme before disposal of sites suggested]. [903 D] Case law referred to. Per Wanchoo and Shah JJ. (dissenting).-(i) The amendment introduced by s. 3(f)(2) in the definition of 'public purpose' was within the concept of public purpose in Art. 32(2) of the Constitution and could not be struck down as ultra vires. [911 B] (ii)By enacting s. 3(3) of the Commissioners Act the State Legislature in effect says that though it considers that the Commissioner should have certain powers it has conferred on him in the Schedule, the State Government may withdraw those powers. This is not a provision for delegated legislation but a transfer by the Legislature of its own power to make law to the executive. Further, if it can be considered to be conferment of power of delegated legislation it suffers from the vice of excessive delegation inasmuch as it gives a power to the executive to the extent of repealing a part of the law made by the legislature [912 G--913 B] (iii)The language of s. 3(4) is of the widest amplitude and gives blanket power to the State Government to amend any enactment which 887 may be in force for the time being in the State by making necessary entries in the Schedule. The provision cannot be read to mean that it authorises the State Government to delegate only its executive powers and duties under other enactments besides those mentioned in the Schedule to the Commissioner by the State Legislation. It is not a case of providing merely for delegated legislation properly so- called but amounts to complete transfer of its power of legislation by the legislature in this matter to the State Government. Sub-s. (4) wag therefore ultra vires and Sub-S. (5) which is consequential on it must fall with it. [913 C- D, H; 915 H-916B] (iv)As the proceedings under the land Acquisition Act were taken by the Commissioner by powers derived from a notification under s. 3(4) the Commissioner ACt which is ultra vires the said proceedings must be must be quashed.[918 A] JUDGMENT:
ORIGINAL JURISDICTION : Writ Petitions Nos. 66 and 146 of
1965.
Petitions under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
Niren De, Additional Solicitor-General, Malcolm Pereira, B.
R. Agarwala, G. L. Sanghi and H. K. Puri, for the
petitioners (in both the petitions).
M.C. Setalvad, N. S. Bindra and B. R. G. K. Achar, for
the respondents (in both the petitions).
The judgment of GAJENDRAGADKAR, C. J. HIDAYATULLAH and
SIKRI, JJ, was delivered by SIKRI J. The dissenting opinion
of WANCHOO AND SHAH JJ. was delivered by WANCHOO, J.
Sikri, J. These two petitions under Art. 32 of the con-
stitution raise substantially the same questions of law and
were heard together and may conveniently be disposed of
together. It would be convenient to give a few facts in
Writ Petition No. 66 of 1965.
The petitioners who are citizens of India are owners of some
land in Greater Bombay in the South Salsetta Taluka in the
Bombay Suburban District. There are four respondents to the
petition; the first is the State of Maharashtra, the second
the Commissioner, Bombay Division, the third the Special
Land Acquisition Officer and the fourth the Maharashtra
Industrial Development Corporation, established by
notification under the Maharashtra Industrial Development
Act, 1961. The predecessor in office of the second
respondent, by notification dated March 30, 1962, published
in the Maharashtra Government Gazette, purporting to act
under s. 4 of the Land Acquisition Act, 1894 (1 of 1894)-
hereinafter referred to as the Act-notified that the land
belonging to the petitioners was likely to be needed “for a
public purpose, viz., for development
888
and utilisation of the said lands as an industrial and
residential area”. By the said notification the third
respondent was appointed to per,form the functions of the
Collector under s. 5-A of the Act in respect of the said
lands. Pursuant to the said notification the third res-
pondent issued a notification under s. 4(1) of the Act
calling upon the petitioners to file their objections to the
acquisition of the said lands under the Act. The
petitioners filed their statement of objections and took the
objection that the purpose for which the lands were
required, viz., development and utilisation of the said
lands as an industrial and residential area, was vague and
was not genuinely or properly a public purpose. The
petitioners further pointed out that the said lands and the
contiguous lands of the petitioners formed a compact area of
land situate on the Central Salsette Railway Track and the
said area could by reason of its location be easily and
without in the least degree adversely affecting the scheme
of the acquisition be excluded therefrom and should be
released from acquisition accordingly. The first
petitioner, Arnold Rodricks, pointed out in his letter dated
October 5, 1963, addressed to the Assistant Secretary to the
Government of Maharashtra, that the Government had already
acquired about 3 acres of his land for University Campus in
addition to his other lands acquired earlier by the State
Government and that the said lands and the land bearing
Survey No. 330 Hissa No. 2(part) and Survey No. 313 Hissa
No. 14 were the only lands left with the petitioners and
that the petitioners required the same for their own
residential home. On October 7, 1963, the second
respondent, being satisfied after considering the report of
the Collector under sub-s. (2) of s. 5-A of Act that the
said lands were needed to be acquired at the public ,expense
for a public purpose, declared under the provisions of s. 6
of the Act that the lands were required for the public
purpose of “development and utilisation of the said lands as
industrial and residential area.” After the issue of the
notification under s. 6, usual notices under s. 9, cls. (3)
and (4) were issued by the third respondent and pursuant to
these notices the petitioners filed their statement of
claim for compensation with the third respondent under
protest and without prejudice to their rights and
contentions. In the petition, the notifications dated March
30, 1962 and October 7, 1963, and the acquisition
proceedings and the enquiries purported to be held under s.
5A and s. 11 of the Act are challenged as being illegal,
invalid and inoperative in law and without and/or in excess
,of jurisdiction, etc., on various grounds.
Before we mention the points urged before us it is necessary
to mention that the Bombay Legislature amended the
definition of the expression “public purpose” in s. 3 of the
Act, and the definition in the Act as amended by the Bombay
Legislature reads as follows :-
(f) the expression “Public purpose” includes
889
(1) the provision of village,sites in
districts in which the Appropriate Government
shall have declared by notification in the
official Gazette that it is customary for the
Government to make such provision and a
housing scheme as defined in- the Land
Acquisition (Bombay Amendment) Act, 1948; and
(2) the acquisition of land for purposes of
the development of areas from public revenues
or some fund controlled or managed by a local
authority and subsequent disposal thereof in
whole or in part by lease, assignment, or
sale, with the object of securing further
development.”
The validity of s. 3(f)(2) above has been questioned before
us. Further, the Act was amended, by Virtue of notification
issued under s.3 (4) of the Bombay Commissioners of
Divisions Act, 1957 (Bombay Act 8 of 1958)-which for the
sake of brevity will be referred to as the Commissioners
Act. The notification had amended ss. 3A, 4, 5A, 6, 7 and
17 of the Act as follows
“1. In section 3A,
(i) after the words “State Government”,
where they occur for the first time, the words
“or the Commissioner” shall be inserted;
(ii) after the words “by the State Government
in this behalf” the words “or, as the case may
be, any officer authorised by the
Commissioner” shall be inserted.
2. In section 4-
(i) in sub-section (1), after the words,
“appropriate Government” the words “or the
Commissioner” shall be inserted;
(ii) in sub-section (2), after the words,
“such Government” the words “or, as the case
may be, by the’ Commissioner” shall be
inserted.
3.In section 5A, in sub-section (2) after
the words “appropriate Government”, where they
occur at two places the words “or, as the case
may be, of the Commissioner” shall be
inserted.
4. In Section 6-
(i) in sub-section(1)-
(a) after the words “appropriate Government”
the words “or, as the case may be, the
Commissioner” shall inserted;
126up. CI/66-14
890
(b) after the words “its orders” the words
“or, as the case may be, under the signature
of the Commissioner” shall be inserted;
(ii)in sub-section (3), after the words
“appropriate Government” the words “or, as the
case may be, the Commissioner” shall be
inserted.
5.In section 7, after the words “in this
behalf” the Words “or, as the case may be, the
Commissioner” shall be inserted,
6. In section 17-
(i) in sub-section (1), after the words
“appropriate Government” the words “or the
Commissioner” shall be inserted.
(ii) in sub-section (2)-
(a) after the words “the State Government”
the words “or the Commissioner” shall be
inserted;
(b) after the words “appropriate Government”
the words “or, as the case may be, of the
Commissioner” shall be inserted;
(iii) in sub-section (4)-
(a) after the words “appropriate Government”
where they occur at two places, the words “or
the case may be, of the Commissioner” shall be
inserted;
(b) for the words “it does so direct” the
words “it or he does so direct” shall be
substituted.”
Mr. Niren De, the learned Additional
Solicitor-General appearing on behalf of the
petitioners, raised four points before us,
(1)That the declarations under ss. 4 and 6
of the Act are essential features or are
related to essential legislative policies and
as such ss. 4 and 6 can only be amended by the
legislature;
(2)That s. 3(4) of the Commissioners Act
suffers from excessive delegation;
(3)That s. 3(4) of the Commissioners Act is an
abdication of the powers of the legislature in
favour of the executive; and
(4)Amendment of the Act by a notification
is a law which requires assent of the
President under arts. 31(2) and art. 254 of
the Constitution, and the assent not having
been obtained, the notification is bad.
891
It would be convenient to take the first three points
together because in substance they raise the point that s.
3(4) is bad, because the legislature should have performed
the functions entrusted to the State Government under s.
3(4) of the Commissioners Act. Mr. Niren De contends that
from 1857 onwards the Indian statutes had made it the duty
of the State Government to decide whether a land was likely
to be needed for a public purpose or not and once the
Government was satisfied the declaration was made
conclusive. He says that this is an essential legislative
feature of the Land Acquisition Act and the Bombay
Legislature should have directly amended the Land
Acquisition Act and not empowered the State Government to do
so. He says that the State Legislature has not really
decided that this essential legislative feature should be
changed and it is incompetent to confer that power on the
State Government. He further points out that there never
has been any power of delegation in the Land Acquisition Act
since 1857. He says that it is well-settled that a
legislature, cannot empower an executive authority to change
an Act in any essential features. He further urges that the
Commissioners Act does not give any guidance to the State
Government as to which Acts should be amended or not and
powers of which officers should be taken away and conferred
on the Commissioners. He urges that the language is wide
enough even to enable the judicial functions of courts under
the Civil Procedure Code and Criminal Procedure Code to be
conferred on the Commissioners.
Mr. Setalvad, who appears on behalf of the respondents, says
that what you have to consider is the legislative policy
underlying the Commissioners Act and not the Land
Acquisition Act. He says that there is enough guidance in
the Commissioners Act and in the history of the legislation
to enable the State Government to decide what powers and
duties should be conferred on the Commissioners. He further
says that the State Government being in, charge- of the
administration of the State knows what duties can
appropriately be conferred on the Commissioners. He points
out that the institution of the Commissioners is not a new
thing; it was in existence before and as the Government
found it necessary to revive the institution of
Commissioners instead of amending each act separately and
conferring powers on the State Government to delegate its
functions, it passed a comprehensive legislation enabling
the State Government to do it. He says that it must be
remembered that the Commissioners are revenue and executive
officers and there is no question of conferring powers on
them under the Criminal Procedure Code or the Civil
Procedure Code.
Let us then first examine the scheme of the Commissioners
Act and the history of the legislation. The preamble of the
Commissioners Act reads as follows
892
“Whereas it is expedient to provide for the
offices of Commissioners of divisions in the
State of Bombay, for prescribing their powers
and duties and to make provisions for matters
consequent on the provision for such offices
and for certain other matters.”
The “Commissioner”. is defined to mean “the
Commissioner of a division appointed under
the law relating to land revenue as amended by
the Schedule to this Act.” The Bombay Land
Revenue Code,, 1879, has been amended by the
Schedule and we may notice S. 6A inserted by
the Schedule. Section 6A is as follows
“6. (1) The Commissioners of divisions shall
be appointed by the State Government.
(2) The Commissioners shall exercise the
powers and discharge the duties conferred and
imposed on a Commissioner under this Act or
under any law for the time being in force, and
so far as is consistent therewith all such
other powers or duties of appeal,
superintendence and control within their
respective divisions, and over the officers
subordinate to them as may from time to time
be prescribed by the State Government.
(3) The Commissioners shall also, subject to
the control and the general or special orders
of the State Government, exercise such powers
and discharge such duties, as the State
Government may confer or impose on them for
the purpose only of carrying out the
provisions of any law for the time being in
force, and so far as is consistent therewith.”
‘It will be noticed that the Commissioner is
enabled by sub-s.6A-(2) to exercise powers
and discharge duties conferred not only by the
Bombay Land Revenue Code 1879 but any other
law for the time being in force. “Division”
is defined to mean the territories formed into
a division under the Bombay Land Revenue Code,
1879, or under that Code in its application to
the Kutch and Saurashtra areas of the State of
Bombay, or under the Madhya Pradesh Land
Revenue Code, 1954, or under the Hyderabad
Land Revenue Act. “Divisional officer” means
an officer appointed as such, immediately
before the commencement of the Commissioners
Act, under the provisions of-
(i) section 5 of the Bombay Land Revenue
Code, 1879, or that section of the Code in its
application to the Kutch area of the State of
Bombay,
(ii) Section 5 of the said Code-in its
application to the Saurashtra area of the
State of Bombay and read with the Government
Notification in the Legal Department
893
(iii) No. 25398/B, dated 1st November, 1956,
issued under section 122 of the States
Reorganisation Act, 1956, section 9-A of the
Madhya Pradesh Land Revenue Code, 1954, read
with Government Notification in the Revenue
Department No.RVA.1556-R, dated 1st November
1956, or
(iv) section 4 of the Hyderabad Land Revenue Act.
“Existing law” is defined as “any enactment of a Legislature
other competent authority in relation to matters specified
in List& 11 and III in the Seventh Schedule to the
Constitution in force in any part of the State immediately
before the commencement of this Act and includes any rule,
bye-law, regulation, order, notification, scheme, form or
other instrument having the force of law made, prescribed or
issued under any such enactment.” Section 3 may be set out
in full;
“3. (1) For the purposes of constituting
offices of commissioners of divisions and
conferring powers and imposing duties on
Commissioners and for certain other purposes,
the enactments specified in column 1 of the
Schedule to this Act shall be amended in the
manner and to the extent specified in column 2
thereof
(2)The Commissioner of a division,
appointed under the law relating to land
revenue as amended by the said Schedule, shall
exercise the powers and discharge the duties
conferred and imposed on the Commissioner by
any law for the time being in force, including
the enactments referred to in sub-section (1)
as amended by the said Schedule.
(3)The State Government may by notification
in the Official Gazette amend or delete any
entry in the Schedule for the purpose of
imposing any conditions or restrictions on the
exercise of powers and discharge of duties
conferred or imposed on the Commissioner or
withdrawing them, as the case may be, and the
Schedule shall be amended accordingly.
(4)The State Government may confer and
impose on the Commissioner powers and duties
under any other enactment for the time being
in force and for that purpose may, by a
notification in the Official Gazette, add to
or specify in the Schedule the necessary
adaptations and modifications in that
enactment by way of amendment; and thereupon-
(a)every such enactment shall accordingly
be amended and have effect subject to the
adaptations and modifications so made, and
894
(b)the Schedule to this Act shall be deemed
to be amended by the inclusion therein of the
said provision for amending the enactment.”
Section 4 repeals the Bombay Commissioners
(Abolition of Office) Act, 1950, and the
Central Provinces and Berar Commissioners
(Construction of References) Act 1948. The
Bombay commissioners (Abolition of Office)
Act,1950 (Bom. Act 28 of 1950) had abolished
the office of the Commissioner and further
provided that wherever a reference was to the
Commissioner, the reference should be read as
a reference to the State Government or to such
authority as the State Government may by
general or special order appoint. The Central
Provinces and Berar Commissioners
(Construction of References) Act, 1948 (61 of
1948) had similarly abolished the
Commissioners Divisions of Nagpur, Jubbulpore,
Chhatisgarh and Berar, and had provided that
the appointment of Commissioners to these
Divisions shall cease. By S. 4 it was further
provided that “all enactments and all
notifications, orders, rules and byelaws
issued, made or prescribed under any enactment
which immediately before the commencement of
this Act were in force shall be construed as
if references therein to the Commissioner were
references to the State Government or to such
authority as the State Government may, by
notification, appoint.”
Sections 5, 6, 7 and 8 of the Commissioners
Act may also be set out in full :
“5. If at the commencement of this Act, any
legal proceedings are pending to which a
Divisional Officer or Director of Local
Authorities is a party, the Commissioner shall
be substituted for the Divisional Officer or
the Director ,of Local Authorities in the said
proceedings.
6. Subject to the provisions made in the
Schedule, all existing laws shall, unless the
context otherwise requires, be ,construed as
if references therein to the Divisional
Officer, or, as the case may be, to the
Director of Local Authorities were references
to the Commissioner.
7. All instruments or documents executed or
made before the commencement of this Act under
or with reference to any existing law or any
enactment specified in the Schedule shall,
unless the context otherwise requires, be
construed as if references therein to the
Divisional Officer or the Director of Local
Authorities were references to the
Commissioner.
8. All proceedings including proceedings by
way of appeals, revision or review pending
under any existing law before the State
Government or a Divisional Officer or
895
Director of Local Authorities or any other
officer or authority immediately before the
commencement of this Act shall, where disposal
of the proceedings falls within the purview of
the powers and duties of the Commissioner, be
transferred to the Commissioner for disposal
according to law.”
It seems to us that the underlying policy or the essential
legislative feature of the Commissioners Act is to
reintroduce the old offices of Commissioners and confer
powers and duties on them which could appropriately be
discharged by them. The Legislature has no doubt left it to
the State Government to decide whether any duties imposed on
it or some of the auhorities should now under the new
administrative set up system be discharged by the Com-
missioners. But the Legislature has definitely given an
indication of the kinds of powers that may be conferred on
them, in ss. 6 and 7. Further, the very nature of the office
held by a Commissioner and the duties performed by him up to
1950 would show that it is only the duties of the State
Government and of officers of equivalent rank discharging
revenue and executive duties which would be conferred on the
Commissioner. We see no difference in principle between the
State Legislature inserting a section in an Act enabling the
State Government to delegate its power to another authority
and the Legislature in view of the change in the
administrative set up conferring powers on the State
Government to confer not only its own duties on
Commissioners but also of other officers performing
executive and revenue duties.
This Court upheld the validity of s. 4 of the Essential
Supplies (Temporary Powers) Act, 1946 (24 of 1946) in
Harishankar Bagla v. The State of Madhya Pradesh(1).
Section 4 was in the following terms:
“4. The Central Government may by notified
order direct that the power to make orders
under section 3 shall in relation to such
matters and subject to such conditions, if
any, as may be specified in the direction, be
exercisable also by-
(a) such officer or authority subordinate to
the Central Government, or
(b) such State Government or such officer or
authority subordinate to a State Government as
may be specified in the direction.”
The Court observed as follows:-
“Section 4 of the Act was attacked on the
ground that it empowers the Central Government
to delegate its own
(1) [1955] 1 S.C.R. 380 at pp. 389-390.
896
power to make orders under section 3 to any
officer or authority subordinate to it or the
Provincial Government or to any officer or
authority subordinate to the Provincial
Government as specified in the direction given
by the Central Government. In other words,
the delegate has been authorised to further
delegate its powers in respect of the exercise
of the powers of section 3. Mr. Umrigar
contended that it was for the Legislature
itself to specify the particular authorities
or officers who could exercise power under
section 3 and it was’ not open to the
Legislature to empower the Central Government
to say what officer or authority could
exercise the power. Reference in this con-
nection was made to two decisions of the
Supreme Court of the United States of America-
Panama Refining Co. v. Ryan(1) and Schechter
v. United States(2). In both these cases it
was held that so long as the policy is laid
down and a standard established by a statute,
no unconstitutional delegation of legislative
power is involved in leaving to selected
instrumentalities the making of subordinate
rules within prescribed limits and the
determination of facts to which the policy as
declared by the Legislature is to apply.
These decisions in our judgment do not help
the contention of Mr. Umrigar as we think that
section 4 enumerates the classes of persons to
whom the power could be delegated or sub-
delegated by the Central Government and it is
not correct to say that the instrumentalities
have not been selected by the Legislature
itself. The decision of their Lordships of
the Privy Council in Shannon’s case(3)
completely negatives the contention raised
regarding the invalidity of section 4. In that
case the Lt.-Governor in Council was given
power to vest in a marketing board the powers
conferred by section 4A(d) of the Natural
Products Marketing (British Columbia) Act,
1936. The attack on the act was that without
constitutional authority it delegated
legislative power to the Lt.-Governor in
Council. This contention was answered by
their Lordships in these terms: “The third
objection is that it is not within the powers
of the Provincial Legislature to delegate so
called legislative powers to the Lt.-Governor
in Council, or to give him powers of further
delegation. This objection appears to their
Lordships subversive of the rights which the
Provincial Legislature enjoys while dealing
with matters falling within the classes of
subjects in relation to which the Constitution
has granted legislative powers. Within its
appointed sphere the Provincial Legislature is
as supreme as any other Parliament; and it is
unnecessary to
(1) 293 U.S. 388. (3) [1938] A.C. 708.
(2) 295 U.S. 495.
897
try to enumerate the innumerable occasions on
which Legislatures, Provincial, Dominion and
Imperial, have entrusted various persons and
bodies with similar powers to those contained
in this Act.”
It would be noticed that s. 4 of the Essential Supplies (
Temporary Powers) Act, 1946, left it to the Central
Government to decide three things; (1) the matters which can
be delegated to the officers or authorities subordinate, (2)
the conditions subject to which the power to make orders
under s. 3 be exercised, and (3) the officers who would
exercise the power to make orders under S. 3. In the present
case, the Legislature has specified that it is only the
Commissioners to whom powers in an act can be delegated. If
a section similar to sub-s. (4) of s. 3 of the Commissioners
Act had been inserted in every Act relating to matters in
Lists 11 and 111, it would have been difficult to
distinguish the decision in Bagla’s(1) case, except on the
ground that the State Government is also enabled to confer
powers of some other authorities on Commissioners. This in
our opinion does not make any difference because the Bombay
Act 28 of 1950 had also enabled State Government to confer
powers of Commissioners on some other authorities.
We may mention that at one stage of the arguments it was
contended that sub-s. (3) of s. 3 of the Commissioners Act
enabled the State Government to amend the Schedule and this
showed the extent of delegation made to the State
Government. But, in our opinion, the object of sub-s. (3)
is two fold; first to enable the Government to impose any
conditions or restrictions on the exercise of powers and
discharge of duties on the Commissioners, and secondly, to
withdraw them in case it is felt that the Commissioners
should not exercise those powers. We see no objection in
entrusting this function to the State Government because, as
mentioned above, the State Government is in charge of the
administration and the whole object of the Commissioners Act
is to enable it to run the administration as smoothly as
possible. After all, the law which the Commissioners or the
State Government or the other authorities have to administer
remains the same; it is only the authority that is changed.
It is really not necessary to consider the other cases cited
before us because the general principles are quite clear and
it is only in their application that difficulties arise. We
have come to the conclusion that the Legislature has not
abdicated itself in favour of the executive but it has laid
down essential legislative policy and wisely left it to the
State Government to reorganise the administration consequent
on the setting up of Commissioners Division. The State
Government is after all in charge of administration and it
knows, specially in view of its previous experience, what
powers
(1) [1955] 1 S.C.R. 380.
898
of existing authorities including itself can suitably be
conferred on the Commissioners. We may mention that the
Bombay High Court has in two decisions (Ganesh Varayan v.
Commissioner Nagpur Division, Nagpur(1) and Sadruddin
Suleman Jhaveri v. J. H. Patwardhan(2)upheld the validity of
the Commissioners Act.
This takes us to the fourth point, namely, whether the
assent of the President was necessary to the notification
amending the Act. ,It is common ground that the
Commissioners Act received assent of the President. The
question that is raised is whether it is necessary that
assent of the President should be obtained for every
notification issued under the Commissioners Act which has
the effect of amending any legislation in respect of the
matters in the concurrent List, i.e. List III. In our
opinion, it is not necessary because the amendment of the
Act became effective by virtue of the Commissioners Act and
not by virtue of the notification. This Court was faced
with a similar problem in Harishanker Bagla and Another v.
The State of Madhya Pradesh(3) and repelled a similar
contention in the following words:
“Conceding, however, for the sake of argument
that to the extent of a repugnancy between’ an
order made under section 3 and the provisions
of an existing law, to the extent of the
repugnancy, the existing law stands repeated
by implication, it seems to us that the repeal
is not by any Act of the delegate, but the
repeal is by the legislative Act of the
Parliament itself. By enacting section 6
Parliament itself has declared that an order
made under section 3 shall have effect
notwithstanding any inconsistency in this
order with any enactment other than this Act.
This is not a declaration made by the delegate
but the Legislature itself has declared its
will that way in section 6. The abrogation or
the implied repeal is by force of the legisla-
tive declaration contained in section 6 and is
not by force of the order made by the delegate
under section 3. The power of the delegate is
only to make an order under section 3. Once
the delegate has made that order its power is
exhausted. Section 6 then steps in wherein
the Parliament has declared that as soon as
such an order comes into being that will have
effect notwithstanding any inconsistency
there-, with contained in any enactment other
than this Act.”
In our opinion the above reasoning applies to the facts of
this case and the Commissioners Act having received the
assent of the President it is not necessary that some
further assent of the President :should be given to a
notification. We may mention that we are assu-
(1) [1964] 66 B.L.R. 807 (2) I.L.R. [1965] Bom. 394.
(3) [1955] 1 S.C.R. 380 at p. 392.
899
ning and not laying down that it is possible to obtain the
assent of the President under the Constitution to the issue
of a notification.
In conclusion we see no force in the contentions raised by
Mr. De on behalf of the petitioners and this takes us to the
next petition (W.P. No. 146 of 1965) in which Mr. Pereira
has raised some additional points. He raised three points
before us; (1) that no hearing was given to the petitioner
under s. 5A of the Act; (2) that the declaration under s. 6
is a colourable exercise of power and (3) that s. 3(f) (2)
of the Act, as amended in Bombay, is void and there is no
public purpose involved in issuing the notification under s.
6 of the Act.
There is no force in the first point because we find, on
looking at the record, that the petitioners raised no
objections to the acquisition and they never wanted any
hearing on this point. As they did not object to the
acquisition, it is difficult to see what enquiries had to be
made under s. 5A.
We may next take up the question of the validity of s.
3(f)(2). In our view it is not necessary to decide this
point because we have come to the conclusion that the
notifications issued under ss. 4 and 6 specified a public
purpose; the purpose specified was development and
utilisation of the said lands as industrial and residential
areas.” In our opinion this purpose is a public purpose
within the Land Acquisition Act as it stood before the
amendment made by the Bombay Legislature and it is not
necessary for the respondents to rely on the amendment to
sustain the notification. This Court in State of Bombay v.
Bhanji Munji(1) upheld the requisitioning of premises for
housing a person having no housing accommodation on the
ground that this was a public purpose. This Court observed
at page 783 as follows:
“In the present set of cases there is proof of
a public purpose. it is given in the
affidavits made on behalf of the State and in
the subsequent orders just quoted, namely to
house the homeless. At that time the housing
situation in Bombay was acute, largely due to
the influx of refugees. Questions of public
decency, public morale, public health and the
temptation to lawlessness and crime, which
such a situation brings in its train, at once
arose; and the public conscience was aroused
on the ground of plain humanity. A race of
proprietors in the shape of rapacious
landlords who thrived on the misery of those
who could find no decent roof over their heads
sprang into being. Even the efficiency of the
administration was threatened
because
Government servants could not find proper
accommodation. Milder efforts to cope with
the evil proved ineffective. It was necessary
therefore for Government take more drastic
(1) [1955] 1 S.C.R. 777.
900
steps and in doing so they acted for the
public weal. There was consequently a clear
public purpose and an undoubted public
benefit.”
In the affidavit of S. R. Naik, Special Land
Acquisition Officer, it is stated that the
State Government had set up a study group to
consider and recommend on various matters
relating to congestion in the Island of
Bombay. The Study group, inter alia, found
“The said Study Group found as a result of its
inquiry that there had been a phenomenal
increase in the population of the Island of
Bombay from 1948 to 1958 during which period
the population had shot up from 14.89 lakhs in
1941 to an estimated 31 lakhs at the close of
1958. It found that this enormous increase in
population had resulted in congestion of
traffic, deficiency in open spaces and play
fields for’ schools, overcrowding in trains,
overcrowding in houses, creation of slums
etc., and that the increased population had
also constituted an increasingly intolerable
burden on the sanitary circumstances and
public utilities of the Island. According to
the estimate of the Study Group based on the
formula adopted by the Director General of
Health Services of the Government of India the
population of Greater Bombay would increase to
a total staggering figure of 75 lakhs, by the
year 1958.
The Study Group also found that just as there
was a heavy concentration of population in
Greater Bombay in a small area of 169 sq.
miles there was also a concentration of
industries in Greater Bombay. It found that
of the total number of 11,539’registered
factories in the State of Maharashtra as in
1958 Greater Bombay had 3,539 registered
factories which meant that one-third of the
total number of factories in the State of
Maharashtra were in Greater Bombay alone. Of
the total number of factories in Greater
Bombay as many as 76 % were located in the
Island of Bombay which admeasures only 26.19
sq. miles out of the total Greater Bombay area
of 169 sq. miles. All these factories in
Greater Bombay employ 44 % of the total number
of factory workers in the State and 85 % of
the factory workers in Greater Bombay were
concentrated within the Island of Bombay
alone. All these factors gave rise to a
number of problems including the problem of
traffic housing accommodation and
deterioration of public utility services.
As regards housing the Study Group observed
that in the year 1958 there were about
57,37,000 tenements in Greater Bombay of all
categories including a large portion
901
of single room tenements. At the rate of five
persons to a tenement the Study Group observed
that the then existing tenements were only
enough for 28 lakhs persons leaving 15 lakhs
persons to be still provided with housing
accommodation. The growth in population and
the concentration of the population in a small
area also led to the deterioration of public
utility services as observed by the Study
Group. The Study Group suggested a number of
measures for relieving the congestion of
population and industries in the Greater
Bombay including the shifting of industries,
the establishment of industrial estates, the
establishment of industries in the suburbs,
the development of the suburbs, reclamation of
land and reclamation of salt pans.”
In our opinion, on these facts it cannot be
held that the impugned notifications were
issued to subserve not a public purpose but
some private purpose. It was observed by this
Court in Babu Barkva Thakur v. The State
Bombay;(1)
“It has been recognised by this Court in the
case of The State of Bombay V. Bhanji Munji
and Another(2) that providing housing
accommodation to the homeless is a public
purpose. In an industrial concern employing a
large number of workmen away from their homes
it is a social necessity that there should be
proper housing accommodation available for
such workmen. Where a larger section of the
community is concerned, its welfare is a
matter of public concern.”
In Pandit Jhandu Lal v. The State of Punjab(3)
it was observed at page 467 :
“There is also no doubt that the structures to
be made on the land would benefit the members
of the Co-operative Society. But, the private
benefit of a large number of industrial
workers becomes public benefit within the
meaning of the Land Acquisition Act.”
It was held in that case that acquisition of
building sites for residential houses for
industrial labourers was for a public purpose
even apart from s. 17(2) of the Act, as
amended by the Land Acquisition (Punjab
Amendment) Act.
In Smt. Somawanti v. The State of Punjab(4)
it was observed :
“Broadly speaking the expression “public
purpose” would, however, include a purpose in
which the general
(1) [1961]1 S.C.R 128 at p 137.
(2) [1955] 1 S.C.R. 777.
(3) [1961] 2 S.C.R. 459.
(4) A.I.R. 1963 S.C. 151
902
interest of the community as opposed to the
particular interest of individuals is directly
and vitally conterned.”
It was further observed at p. 163
“Public purpose is bound to vary with the
times and the prevailing conditions in a given
locality and therefore it would not be a
practical proposition even to attempt a
comprehensive definition.”
It was urged before us that the State Government was not
entitled to acquire property from A and give it to B.
Reliance was placed on the decision of the Supreme Judicial
Court of Massachusetts (204 Mass. 607). But as pointed out
by this Court, public purpose varies with the times and the
prevailing conditions in localities, and in some towns like
Bombay the conditions are such that it is imperative that
the State should do all it can to increase the availability
of residential and in dustrial sites. It is true that these
residential and industrial sites will be ultimately allotted
to members of the public and they would get individual
benefit, but it is in the interest of the general community
that these members of the public should be able to have
sites to put up residential houses and sites to put up
factories. The main idea in issuing the impugned
notifications was not to think of the private comfort or
advantage of the members of the public but the general
public good. At any rate, as pointed out in Babu Barkya
Thakur v. The State of Bombay(1) a very large section of the
community is concerned and its welfare is a matter of public
concern. In our view the welfare of a large proportion of
persons living in Bombay is a matter of public concern and
the notifications served to enhance the welfare of this
section of the community and this is public purpose. In
conclusion we hold that the notifications are valid and
cannot be impugned on the ground that they were not issued
for any public purpose.
Mr. Pereira then urged that the notifications were
colourable. We are not able to appreciate how the
notifications are serving Any collateral object. He said
that he used the word “colourable” in the sense used by this
Court in Mst. Somawanti v. State of Punjab(2) Mudholkar,
J., observed as follows :
“If the purpose for which the land is being
acquired by the State is within the
legislative competence of the State the
declaration of the Government will be final
subject, however, to one exception. That
exception is that if there is a colourable
exercise of power the declaration will be open
to challenge at the instance of the aggrieved
party. The power committed to the Government
by the Act is a limited power in the sense
that it can be exer-
(1) [1961] 1 S.C.R. 128.
(2) A.I.R. 1963 S.C. 151.
903
cised only where there is a public purpose,
leaving aside for a moment the purpose of a
company. If it appears that what the
Government is satisfied about is not a public
but a private purpose or no purpose at all the
action of the Government would be colourable
as not being relatable to the power conferred
upon it by the Act and its declaration will be
a nullity. Subject to this exception the
declaration of the Government will be final.”
No material has been placed before us that the exercise of’
the power by the Government is colourable in this sense.
The Government has the power to issue the notifications for
a public purpose, and, as we have already held that the
notifications were issued for a public purpose, there is no
question of any colourable exercise of the power.
Lastly, he contended that the Government had not before
issuing the notifications prepared any scheme. This is true
that the Government has not uptil now prepared any scheme
for the utilisation of the developed sites. But the
notification itself shows that the sites would be used as
residential and industrial sites. There is no law that
requires a scheme to be prepared before issuing a
notification under s. 4 or s. 6 of the Act. We have,
however,. no doubt that the Government will, before
disposing of the sites, have a scheme for their disposal.
In the result we see no force in any of the contentions
urged before us and we hold that the notifications are
valid. The petitions accordingly fail and are dismissed but
there will be no order as to costs.
Wanchoo, J. We regret we are unable to agree.
These two petitions under Art. 32 of the Constitution raise
common questions of law and will be dealt with together. We
may briefly state the facts in W. P. 66. The facts in the
other petition are exactly similar except that the dates of
the notifications are in some cases different and the lands
notified are also different. On March 30, 1962, the
Commissioner of Bombay Division issued a notification under
s. 4 of the Land Acquisition Act, No. 1 of’ 1894,
(hereinafter referred to as the Act). By this notification
he declared that certain lands were likely to be needed for
a public purpose, namely, “for development and utilisation
of the said lands as an industrial and residential area”.
In consequence, objections were invited under s. 5-A of the
Act and the Special Land Acquisition Officer, Bombay and
Bombay Suburban District was notified as the person to
perform the functions of a Collector under s. 5-A of the
Act. After the proceedings under s. 5-A of’ the Act were
over, the Commissioner issued another notification on
October 7, 1963 under s. 6 of the Act. By this notification
he
904
declared that certain lands out of those notified under s. 4
were needed to be acquired at the public expense for the
public purpose already specified. Some of the lands were
however exempted and the notification under s. 4 with
respect thereto was cancelled. The petitioners are owners
of some of the lands included in the notification under s.
6. On receipt of the notice under s. 9 of the Act, they
represented to Government that their lands be released from
acquisition. They were informed that this could not be done
and thereupon the present petition was filed to challenge
the legality of the proceedings taken under the Act.
Two main contentions have been urged in these petitions on
behalf of the petitioners. In the first place it is
contended that the impugned acquisition is not for a public
purpose and is intended for sale to private persons, limited
companies and corporations for monetary gain, and in any
case, the change in the definition of “public purpose” by
the Land Acquisition (Bombay Amendment) Act, No. 35 of 1953,
(hereinafter referred to as the 1953Act) by which a new
clause was added in s. 3 (f) of the Act was ultra vires the
concept of “public purpose” within the meaning of that
phrase in Art. 31 (2) of the Constitution. The added clause
is in these words
“The acquisition of land for purposes of the
development of areas from public revenues or
some fund controlled or managed by a local
authority and subsequent disposal thereof in
whole or in part by lease, assignment or sale,
with the object of securing further
development.”
The second attack arises in this way. By the Bombay Corn-
missioners (Abolition of Office) Act, (No. 28 of 1950) the
office of the Commissioner in the State of Bombay was
abolished and the functions of the Commissioner were
transferred to the State Government or to such authority as
the State Government may by general or special order
appoint. In 1958, how,ever, the Bombay Commissioners of
Divisions Act, No. 8 of 1958, (hereinafter referred to as
the 1958 Act) was passed by which the office of Commissioner
of Division in the State of Bombay was revived. We are
concerned in the present appeal mainly with s. 3 (4) of this
Act. By section 3 (1) it is provided that “for the purposes
of constituting offices of Commissioners of divisions ,and
conferring powers and imposing duties on Commissioners and
for certain other purposes, the enactments specified in
column I of the Schedule to this Act shall be amended in the
manner and to the extent specified in column 2 thereof”.
Sub-section (2) thereof provided that “the Commissioner of a
division, appointed under the law relating to land as
amended by the said Schedule, shall exercise the powers and
discharge the duties conferred and imposed ,on the
Commissioner by any- law for the time being in force,
905
including the enactments referred to in sub-s. (1) as
amended by the said Schedule”. The Schedule made a number
of amendments in the Bombay Revenue Code (No. 5 of 1879),
the main amendment being that s. 6 provided for appointment
of Commissioners for each division and s. 6-A provided for
powers and duties of Commissioners. Further, in certain
sections of the Land Revenue Law as applied to various areas
in the reconstituted State of Bombay after the re-
organisation of 1956, the word “Commissioner” was
substituted for the “State Government” in various sections.
Changes were also made in the Hyderabad Land Revenue Act
(No. 8 of 1317 F.) and the Madhya Pradesh Land Revenue Code
(No. 2 of 1955) to bring them into line with this Act and to
provide for the office of Commissioner and its powers and
duties. Besides these changes in the Land Revenue Code
applicable to various areas in the re-organised State of
Bombay, the Schedule also made amendments in various other
Acts in force in the State of Bombay and “Commissioner” was
substituted for “State Government” in these Acts. Besides
this, “Commissioner was also substituted for “Board of
Revenue” in certain Acts in force in areas which came to the
re-organised State of Bombay from the former Part B State of
Hyderabad. Changes were also made in the Police Act (No. 5
of 1861) and “Commissioner, was introduced in certain
sections thereof and a provision was made that the Magis-
trate of the District should be under the general control
and direction of the Commissioner. Some changes were made
in the Saurashtra Police Act (No. 18 of 1954), the Hyderabad
District Police Act, (No. X of 1329 F) and the Bombay
District Police Act, (No. 4 of 1890). Thus sections 3(1)
and 3(2) as enacted by the Bombay legislature gave certain
powers and imposed certain duties on Commissioners read with
the amendments in the Schedule to the 1958 Act.
Further provision was made in sub-sections
(3), (4) and (5) which may now be set out.
They read thus :
“(3) The State Government may by notification
in the Official Gazette amend or delete any
entry in the Schedule for the purpose of
imposing any conditions or restrictions on
the. exercise of powers and discharge of
duties conferred or imposed on the
Commissioner or withdrawing them as the case
may be, and the Schedule shall be amended
accordingly.
(4) The State Government may confer and
impose on the Commissioner powers and duties
under any other enactment for the time being
in force and for that purpose may, by a
notification in the Official Gazette add to or
specify in the Schedule the necessary
adaptations and modifications in that
enactment by way of amendment; and thereupon–
q2Sup CI/66-12
906
(a) every such enactment shall accordingly be amended and
have effect subject to the adaptations and modifications so
made, and
(b) the Schedule to this Act shall be deemed to be amended
by the inclusion therein of the said provision for amending
the enactment.
(5) The State Government may at any time in like manner
cancel a notification under sub-section (4), and thereupon
the relevant enactment shall stand unamended by the
cancelled notification and the Schedule shall be altered
accordingly.”
It will be seen that these three sub-sections provided an
integrated scheme. By sub-section (3) the State Government
is given the power by notification in the Official Gazette
to amend or delete any entry in the Schedule for the purpose
of imposing any conditions or restrictions on the exercise
of powers and discharge of duties conferred or imposed on
the Commissioner or withdrawing them, as the case may be,
and the Schedule shall be amended accordingly. Sub-section
(4) empowers the State Government to confer and impose on
the Commissioner powers and duties under any other enactment
for the time being in force. It further empowers the State
Government for that purpose by notification in the Official
Gazette to add to or specify in the Schedule the necessary
adaptations and modifications in that enactment by way of
amendment. On such notification, such other enactment shall
accordingly be amended and have effect subject to the
adaptations and modifications so made, and the Schedule to
the 1958 Act, shall be deemed to be amended by the inclusion
therein of the said provision for amending the enactment.
By sub-section (5) the State Government was given the power
to cancel a notification made under sub-s. (4) and thereupon
the relevant enactment shall stand unamended by the
cancelled notification and the Schedule shall be altered
accordingly. The contention of the petitioners is that by
these sub-sections, and particularly by sub-s. (4) of s. 3,
there was excessive delegation of legislative power to the
State Government and further that these three sub-sections
amount to the legislature abdicating its power of
legislation in favour of the State Government. So it is
urged that these provisions, and particularly s. 3(4), are
ultra vires the power of the legislature inasmuch as they
suffer from the vice of excessive delegation and amount to
abdication of its power of legislation by the legislature in
favour of the executive.
The petitions have been opposed on behalf of the State
Government, and it is contended that the new clause added to
s. 3(f) of the Act by the 1953 Act by which the definition
of “public
907
purpose” was amended is valid and what the addition has
provided is within the concept of “public purpose” as used
in Art. 31(2) of the Constitution. Further it is denied
that the object of the State Government in making the
acquisition is merely to sell the land acquired to private
parties, private limited companies or corporations for
monetary gain. As to s. 3(4) it is contended that it does
not suffer from the vice of excessive delegation and does
not amount to abdication of its legislative power by the
legislature in favour of the executive.
We shall first consider the question whether the addition
made by the Act of 1953 in the definition of “public
purpose” is ultra vires the concept of “public purpose” as
used in Art. 31(2) of the Constitution. “Public purpose”,
is not defined in Art. 31 of the Constitution; nor is it
possible to lay down any hard and fast definition of “public
purpose”. The phrase came up for consideration before this
Court in the State of Bihar v. Maharajadhiraja Sir Kameshwar
Singh of Darbhanga and Others(1). In that connection
Mahajan J. (as he then was) observed that “the phrase
‘public purpose’ has to be construed according to the spirit
of the times in which the particular legislation is
enacted.” He also referred to Art. 39 of the Directive
Principles of State Policy in construing the phrase “public
purpose” after coming into force of the Constitution. In
the same case, Das J. (as he then was) observed that “no
hard and fast definition can be laid down as to what is a
‘public purpose’ as the concept has been rapidly changing in
all countries, but it is clear that it is the presence of
the element of general interest of the community in an
object or aim that transforms such object or aim into a
public purpose, and whatever furthers the general interests
of the community as opposed to the particular interest of
the individual must be regarded as a public purpose.”
We respectfully agree with these observations. There can be
no doubt that the phrase “public purpose” has not a static
connotation, which is fixed for all times. There can also
be no doubt that it is not possible to lay down a definition
of what “public purpose” is, particularly as the concept of
public purpose may change from time to time. There is no
doubt however that “public purpose” involves in it an
element of general interest of the community and whatever
furthers the general interest must be regarded as a public
purpose. It is in the light of this concept of public
purpose, which is not static and is changing from time to
time and in which there must always be an element of general
interest of the community that we have to look at the
addition made by the 1953 Act in the definition of “public
purpose” in s. 3 (f) of the Act.
(1) [1952] S.C.R. 889.
908
We. have already set out the addition. It is in two parts.
The first part provides for acquisition of land for purposes
of the development of areas from public revenues or some
fund controlled or managed by a local authority. So far as
this part is concerned, it is conceded by learned counsel
for the petitioners that development of areas with the aid
of public revenue or some fund controlled or managed by a
local authority would be a public purpose. Under this part
the land would be acquired by the State or by a local
authority for the purpose of development and this
development will consist, _generally speaking, of levelling
land, providing roads thereon, providing drainage and
electric lines and such other amenities as should be made
available at the time when the acquisition is made and the
land is developed. Such development generally speaking is
not possible through private agencies. As we have said
already, it is not disputed on behalf of the petitioners
that such development would be a public purpose within the
concept of the phrase in Art. 31(2) of the Constitution.
The attack of the petitioners is on the second part of the
addition in 1953 which provides for “subsequent disposal
thereof in whole or in part by lease, assignment, or sale,
with the object of securing further development.” It is
urged that all these words mean is that after the
development envisaged in the first part of the addition the
State or the local authority would be free to dispose of the
land acquired in whole or in part by lease, assignment or
sale, apparently to private persons. This, it is said,
means that the State or the local authority would acquire
land in the first instance and develop it in the manner
already in dilated and thereafter make profit by leasing,
assigning or selling it to private individuals or bodies.
It is also said that the object of securing further
development which is the reason sale or lease etc. is a very
vague expression and there is nothing to show what this
further development comprises of.It is true that when this
part speaks of “subsequent disposal thereof in whole or in
part by lease, assignment or sale”, it is not unlikely that
this disposal will take place to private persons and thus in
an indirect way the State would be acquiring the land from
one set of individuals and disposing it of to another set of
individuals after some development. If this were all, there
may be some force in the argument that such acquisition is
not within the concept of “public purpose” as used in Art.
31(2). But this in our opinion is not all. We cannot
ignore the words “with the object of securing further
development”, which appear in this provision. it would have
been a different matter if the provision had stopped at the
words “lease, assignment or sale ” ; but the provision does
not stop there. It says that such lease, assignment or sale
must be with the object of securing further development, and
these
909
words must be given some meaning. It is true that the words
“further development” have not been defined, but that was
bound to be so, for further development would depend upon
the nature of the purpose for which the land is acquired.
Of course, it is possible that further development can be
made by the State itself or by the local authority which
acquires the land; but we see no reason why the State or the
local authority should not have the power to see that
further development takes place even through private
agencies by lease, assignment or sale of such land. So long
as the object is development and the land is made fit for
the purpose for which it is acquired there is, no reason why
the State should not be permitted to see that further
development of the land takes place in the direction for
which the land is acquired, even though that may be through
private agencies. We have no doubt that where the State or
the local authority decides that further development should
take place through private agencies by disposal of the land
so acquired by way of lease, assignment or sale, it will see
that further development which it has in mind does take
place. We can see no reason why if the land so acquired is
leased, assigned or sold, the State or the local authority
should not be able to impose terms on such lessee, assignee
or vendee that will enable further development on the lines
desired to take place. We also see no reason why when
imposing terms, the State or the local authority may not
provide that if the further development it desires the
lessee, assignee or the vendee to make is not made within
such reasonable time as the State or the local authority may
fix, the land will revert to the State or the local
authority so that it may again be used for the purpose of
further development which was the reason for the acquisition
of the land.
Take the case where land is acquired for the purpose of
development of certain areas for residential purposes. The
State or the local authority levels the land where
necessary, makes a lay out, provides roads, drainage,
electric lines and such other amenities as may be available
whereafter houses have to be built. The State or the local
authority may build these houses itself, but there is no
reason why if the purpose is development of certain land as
a residential area, the State or the local authority may not
lease, assign or even sell the lands laid out and already
developed in order that further development of building
houses may be achieved. In such a case it will always be
open to the State Government or the local authority to
provide, and we have no doubt that it will always so
provide, that the persons to whom the land is leased,
assigned or sold carry out the further object of building
houses. There is also no reason why the State or the local
authority should not provide for the terms on- which
residential buildings would be made, the specifications of
such
910
buildings, and the time within which they should be made.
There is also no reason why the terms should not provide
that if the further object of development is not carried out
within a reasonable time, the land would revert to the State
or the local authority to be used for the purpose for which
it was acquired. We have no doubt that the State or the
local authority would see that such terms are imposed on
those to whom lands are leased, assigned or sold with the
object of further development, by constructing houses where
the scheme is for residential purposes. We have also no
doubt that in imposing terms, the State or the local autho-
rity will see that the purpose for which the lease,
assignment or sale is made is carried out within a
reasonable time, failing which the land will revert to the
State or the local authority. These matters are in our
opinion implicit in the words “with the object of securing
further development”, and we have no reason to think that
the State or the local authority would just dispose of the
land so acquired by lease or assignment or sale without
caring to see that further development which was the basis
of acquisition takes place.
We may refer in this connection to a similar provision in S.
41 of the Act, which provides for an agreement between the
private company for which the land is acquired and the
State, and which lays down that the agreement shall provide
the terms on which the land shall be held by the company.
There is in our opinion no doubt that when this provision
speaks of “with the object of securing further development”
it implicitly requires that before the land so acquired is
leased, assigned or sold, the State or the local authority
shall see that the purpose for which the acquisition is made
is carried out by persons to whom the land is leased,
assigned or sold. There is also in our opinion implicit in
this provision that the State or the local authority would
impose terms on the persons to whom the land is leased,
assigned or sold and the terms should be such as to ensure
that the object of further development takes place within a
reasonable’ time and if the persons to whom the land is
leased or assigned or sold do not carry out that object
within a reasonable time, the land would revert to the State
or the local authority so that it may again be used for the
purpose for which the acquisition was made. If this-is the
true import of the words “with the object of
securing,further development” in this provision-and we have
no doubt that it is so-we fail to see how the provision made
by the 1953 Act Providing for development in two stages,
first by the State or the local authority itself by making
the land fit for the purpose for which acquisition is made,
and then by private persons also after the land is developed
by the State or the local authority, is not for a public
purpose within the meaning of that phrase in Art. 31(2) of
the Constitution. Population in India is rising and more
911
or more industries are coming into being. Therefore’ where
the acquisition is with the object of providing for
residential and industrial development, we see no reason why
such provision would not be included in the concept of
public purpose in the present context. We are therefore of
opinion that the words “with the object of securing further
development” have a meaning and if that meaning is what we
have stated above (as to which we have no doubt) it cannot
be said that this provision made by the 1953 Act is not
within the concept of Art. 31(2) of the Constitution. We
therefore hold that the amendment by the 1953 Act already
set out above is within the concept of public purpose in
Art. 31(2) of the Constitution and cannot be struck down as
ultra vires.
Delegated legislation is a well known modem device. In view
of the complexities of modem life it is not possible for the
legislature to find time to make all the detailed rules
which are necessary to carry out the purposes of an
enactment; so it delegates to an appropriate executive
authority the power to make rules. But before doing so, the
legislature itself enacts the law under which the power is
delegated and lays down the essential policy of the Act and
all such essential matters which require to be included in
the Act itself. Having thus provided for all such essential
matters in the enactment itself, the legislature leaves it
to a subordinate authority which may be some appropriate
executive authority to frame detailed rules to carry out the
purposes of the Act. These rules are ancillary and subserve
the purposes of the enactment. They cannot go against the
provisions of the enactment and cannot in any manner make
any change in the provision of the enactment and are merely
for the purpose of carrying out the essential policy which
the legislature has laid down in the enactment itself.
These rules are called delegated legislation and it is
important to remember that this delegated legislation cannot
in any way change the provisions of the enactment itself and
must only be resorted to for carrying out the purposes of
the legislation itself. Such being the nature of delegated
legislation we have to see whether the impugned provisions
of s. 3 are in accord with these principles. If they are
not and if the legislature has conferred powers on the State
Government beyond this such conferment of power cannot be
delegated legislation and is really an abdication of its
power by the legislature and transfer of it to the
executive.
This brings us to a consideration of s. 3. Sub-sections (1)
and (2) of s. 3 read with the Schedule confer powers and
impose duties on the Commissioner by virtue of the 1958
‘Act. itself. Then comes sub-section (3), and let us see
what exactly it provides. The State Government is given
power by this sub-section to amend or delete any entry in
the Schedule. The amendment is for the purpose of imposing
any conditions or restrictions on the
912
exercise of powers and discharge of duties conferred or
imposed on the Commissioner while deletion is with respect
to withdrawing any powers conferred by the Schedule on the
Commissioner. Leaving out the question of amendment, sub-
section (3) confers power on the State Government to delete
any entry from the Schedule if it desires to withdraw any
powers conferred on the Commissioner by the legislature
itself in the Schedule. In effect therefore the legislature
says by sub-s. (3) that though it has deemed fit in its
wisdom to confer a certain power on the Commissioner, it
leaves it to the State Government to withdraw that power
from the Commissioner and delete the necessary entry in
the Schedule with respect thereto. So the State Government
is given carte blanche to take away all or any of the
powers conferred by the legislature itself under the
Schedule. It may also be added that the Schedule in the
present case is very different from the Schedule in the
Edward Mills Co. Limited v. The State of Ajmer(1). In that
case s. 27 of the Minimum Wages Act. (11 of 1948) gave power
to the appropriate government after necessary formalities to
add to the schedule any employment in respect of which it
was of opinion that minimum rates of wages should be fixed
under that Act. It will be seen that the schedule in that
Act merely enumerated certain employments while the Schedule
in the 1958 Act amends a large number of enactments. This
method is merely a convenient device for making amendments
in other enactments which would otherwise have found place
in the main body of the 1958 Act. Further s. 27 of the
Minimum Wages Act did not give any power to the appropriate
government to delete any entry from the schedule; it merely
gave power to the appropriate government to add to the
schedule and that delegation was upheld by this Court. It
will thus be seen that the provision in sub-s. (3) by which
the State Government is even given the power to delete any
entry in the Schedule and withdraw if it wants to do so the
power conferred on the Commissioner by the legislature is a
very different matter from addition to the schedule which
was permitted by the Minimum Wages Act.
It is clear that sub-s. (3) judged by the test of delegated
legislation has gone far beyond what the legislature can do
when it delegates its functions to an executive authority
for making subordinate legislation’ As we have indicated
above, sub-section (3) confers power on the State Government
even to the extent of deleting any entry from the Schedule
and withdrawing the power conferred by the legislature in
its wisdom on the Commissioner. This in our opinion is not
delegated legislation but transfer by the legislature of its
power in the matter of legislation to the executive. In
effect the legislature says that though it considers that
the Commissioner should have certain powers it has conferred
on
(1) [1955] 1 S.C.R. 735.
913
him in the Schedule, the State Government may withdraw those
powers which it has thought fit to confer on the
Commissioner. We are of the opinion that this is not a
provision for delegated legislation but a transfer by the
legislature of its power to make law to the executive.
Further if it can be considered to be conferment of power of
delegated legislation, it suffers from the vice of excessive
delegation inasmuch as it gives power to the executive to
the extent of repealing a part of the law made by the
legislature.
Then we come to sub-s. (4) and let us see what it provides.
It says that the State Government may confer and impose on
the Commissioner powers and duties under any other enactment
for the time being in force and further gives power to the
State Government to amend any such enactment by adding to
the entries to the Schedule. The language of the provision
is of the widest amplitude and gives blanket power to the
State Government to amend any enactment which may be in
force for the time being in ,the State by making necessary
entries in the Schedule. It is however urged on behalf of
the State that we should read down this provision in two
respects. As the words stand, they confer power on the
State Government to amend any enactment for the time being
in force even though that enactment may be a law under List
I of the Seventh Schedule to the Constitution. It is urged
that the legislature could not have meant to confer power on
the State Government by this provision with respect to laws
under List I of the Seventh Schedule to the Constitution,
for the legislature itself had no power to make any
amendment in laws referable to List I of the Seventh
Schedule. We are of the opinion that the provision in sub-
s. (4) can be read down to this extent that the legislature
could never have intended to give power to the State
Government in matters in which it had itself no power. We
shall therefore proceed on the basis that in sub-section (4)
the legislature only referred to enactments which it was
itself competent to pass under Lists 11 and III of the
Seventh Schedule to the Constitution.
Secondly, it is urged that we should read down this provi-
sion and hold that all that the legislature intended thereby
was to give to the State Government power to confer on the
Commissioner powers and impose upon him duties of an
executive nature which were conferred and imposed on the
State Government by laws referable to Lists II and III of
the Seventh Schedule to the Constitution. It is also urged
that all that the legislature intended by this provision in
sub-section (4) was to confer on the State Government the
power to delegate its own executive power under other
enactments not specified in the Schedule to the Com-
missioner. We are unable to see on what principle we can
read down this provision in this manner. Even if we look at
the sche-
914
dule as it was passed by the legislature we find that though
mostly “Commissioner” was substituted for “State Government”
in the enactments specified in the Schedule there are other
provisions in the Schedule as enacted by the legislature
which go beyond this. The Schedule therefore is of no help
in reading down the provision in sub-s. (4) in the manner
suggested. Besides what learned counsel for the State asks
when he says that we should read down the provision in sub-
s. (4) is that we should re-draft it altogether and add
words in it which are not to be found therein. Sub-section
(4) says that the State Government may confer and impose on
the Commissioner powers and duties under any other
enactment. The nature of these powers and duties are not
specified in the provision, and we fail to see how we can
add words in the sub-section, which would delimit the nature
of these powers and duties as, merely executive powers
conferred by other enactments on the State Government. Sub-
section (4) as it stands therefore does not merely authorise
the State Government to delegate its executive power to the
Commissioner under other enactments; it empowers the State
Government to confer any powers and impose any duties under
any other enactment and to do so by amendment of the other
enactment, and if notification envisaged therein is made,
the other enactment is accordingly amended and the Schedule
is also amended by the inclusion of the provision in the
notification. As the words of sub-section (4) stand we
cannot in any way read down this provision to mean that , it
only authorises the State Government to delegate its
executive powers and duties under other enactments besides
those mentioned in the Schedule to the Commissioner by the
legislature. If that was all that the legislature intended,
we do not see why a suitable provision to that effect could
not have been made by the legislature in sub-s. (4). It is
however clear from the scheme of S. 3 that is not all that
the legislature intended. We have already referred to sub-
s. (3) and held that by that provision the legislature
empowered the State Government to amend or repeal the law
contained in the Schedule to the 1958 Act. By sub-section
(4) it further empowered the State Government to amend any
other law not mentioned in the Schedule, though of course
with the object of conferring powers and imposing duties on
the Commissioner under other enactments which might have
been conferred by those enactments on other authorities. In
effect therefore the legislature was empowering the State
Government by sub-s. (4) to substitute “the Commissioner”
for the other authorities which might be mentioned in other
enactments with respect to any powers and duties thereunder.
Taking a concrete case to illustrate our point and to show
the far reaching effect of the provision in sub-s. (4) we
may refer to s. 18 of the Act. Under that provision the
Collector has the power
915
to make reference to court in certain circumstances on the
application of a person who has not accepted the award made
by the Collector. Sections 20 to 28 confer powers on the
court and impose duties on it when dealing with references.
The Act was not one of the enactments mentioned in the
Schedule as it was originally passed by the legislature. On
the wide words used in sub-s. (4) it would be possible for
the State Government to confer on the Commissioner the
powers conferred on the court and duties imposed on it by s.
18 to s. 28 by substituting the word “Commissioner” for the
word “court” in the relevant provisions. If that is the
extent of the power conferred on the State Government by
sub-s. (4)-(and we have no doubt that it is so)-it is not a
case of providing merely for delegated legislation properly
so-called but amounts to complete transfer of its power of
legislation by the legislature in this matter to the State
Government. We fail to see why if the intention of the
legislature was merely to provide for delegation of its
executive power by the State Government to the Commissioner
a simple provision to the effect that the State Government
may delegate its power under any enactment for the time
being in force to the Commissioner was not made. Instead we
find an integrated scheme in sub-sections (3), (4) and (5).
By sub-section (3), the State Government is given the power
to amend the Schedule enacted by the legislature and take
away from the Commissioner powers which the legislature in
its wisdom thought fit to confer on him. This is done by
providing for deletion of any entry in the Schedule. Then
by sub-section (4) power is given to the State Government to
confer powers and impose duties on the Commissioner under
any other enactment by amending that enactment. Lastly by
sub-section (5) the State Government was given the power to
undo what it had done under sub-section (4) and on such
action being taken the original provision in the other
enactments would revive. This scheme is clear from the
provisions of sub-sections (3), (4) and (5) and in our
opinion clearly amounts to transfer of its legislative power
by the legislature to the State Government with respect to
matters dealt with in these sub-sections. Further if this
is to be treated as a kind of delegation, then these sub-
sections suffer from the vice of excessive delegation for
they not only authorise the State Government to frame rules
in the nature of subordinate legislation but give power to
it to undo what the legislature itself has done by the 1958
Act; they also give further power to the State Government to
amend what the legislature may itself have provided in other
enactments already in force or what it may provide by other
enactments to be passed in future. We have no doubt
therefore that sub-s. (4) cannot be read down in the manner
urged on behalf of the State. There is also no doubt that
as this provision stands it is a complete transfer of
legislative power by the legislature to the executive within
the ambit of sub-s. (4). Sub-section (5) is consequential
to,
916
sub-s. (4) and will fall along with it. We are therefore of
opinion that the provisions contained in sub-sections (3),
(4) and (5) of S. 3 of the 1958 Act which are clearly an
integrated scheme are ultra vires the power of the
legislature for they amount to transfer by the legislature
of its legislative power to the State Government, and in any
case suffer from the vice of excessive delegation if such
conferment of power can be called delegation for the pur-
poses of subordinate legislation.
We may now refer to two decisions of the Bombay High Court
in which S. 3(4) of the 1958 Act has been upheld, namely,
(i) Ganesh Narayan v. Commissioner, Nagpur Division(1), and
(ii) Sadruddin Suleman Jhaveri v. Patwardhan(2). With
respect we find that in these two cases no attempt has been
made to construe the actual words used in S. 3(4) and it has
been assumed that the section merely allowed the State
Government to confer on the ,Commissioner powers and impose
duties which have been conferred or imposed on the State
Government under other enactments. We have construed the
words used in S. 3(4) and we are of the opinion that this is
not what they mean. The words are of very wide amplitude
and as they stand they confer on the State Government power
to amend any other Act and confer on the Commissioner powers
and impose duties under those acts which may be conferred
thereunder on any authority. Further there is nothing in
the words of s. 3(4) confining conferment of powers of exe-
cutive nature only. As the words stand, any powers and
duties of any authority can be conferred on the
Commissioner.
Nor do we think that the principles laid down in the case of
Her Majesty, the Queen v. Burah(3) and of Re. Delhi Laws
Act, 1912(4) help to sustain the validity of S. 3(4).
Burah’s case(4) was a case of conditional legislation and
not of delegated legislation. Act 22 of 1869 was enacted to
remove the Garo Hills from the jurisdiction of the tribunals
established under the General Regulations and Act and for
other purposes. It was to apply in the first instance to
Garo Hills but S. 9 thereof gave power to the Lieutenant-
Governor to extend the provisions of this Act or any of them
to the Jaintia Hills, the Naga Hills and to such portion of
the Khasi Hills as for the time being forms part of British
India. By virtue of this power, the Lieutenant-Governor
issued a notification extending the provisions of this Act
to the Khasi and Jaintia Hills and excluding therefrom the
jurisdiction of the Courts of Civil and Criminal Judicature.
The Privy Council upheld the validity of S. 9 as a piece of
conditional legislation. It
(1) [1964] 66 Bom. Law Reporter 807.
(3) [1878] L.R. 5 I.A. 178.
(2) I.L.R. [1965] Bom. 394.
(4) [1951] S.C.R. 747.
917
will be seen however that all that was left to the
Lieutenant-Governor by s. 9 was to apply a certain law which
had been passed by a competent legislature to a certain
area. There was no provision in the law for any amendment
of that law or any other law before its application to new
territories. There is therefore no parallel between that
case and the present case.
We are further of opinion that Re. Delhi Laws Act case(1)
also cannot help the State. The main question in that case
was about the extension of certain laws with necessary
adaptations and modifications to Delhi. It was in that
connection that this Court held that was also conditional
legislation and laws in force. in other parts of India could
be extended to Delhi subject to necessary modifications and
adaptations. Even so this Court pointed out that it was not
open to the authority on whom such power was conferred to
modify them in any essential feature when ordering their
extension. )”at constitutes “essential feature” of a piece
of legislation was a matter over which there was difference
of opinion between the learned Judges of this Court; but
they were agreed that no essential feature could be altered
by the power given to the executive to apply other laws in
force in India to the territory of, Delhi by modification or
adaptation. This would also be more or less a case of
conditional legislation and not of delegated legislation.
As pointed out by Mukherjea J. (as he was then) at p. 1009
in Re. Delhi Laws Act’s case(1) “to repeal. or abrogate an
existing law is the exercise of an essential legislative
power”. The amendment of a particular law falls also in the
same category, for an amendment in effect amounts to a
partial repeal of the existing provision with, may be,,
substitution in its place of another provision. What the
legislature has done in the present case is to give power to
the executive to amend other laws as it thinks fit for the
purpose of conferring powers on the Commissioner and this
in, our opinion is conferment of an essential legislative
function on the executive which cannot be justified on the-
principles laid down in Re. Delhi Laws Act case(1). As we
read s. 3(4), we are clearly of opinion that it confers
power on the State Government to amend any law it deems fit
for the purpose of conferring any powers and imposing any
duties on the Commissioner which may be imposed by other
laws on any authority. This is beyond the power of the
legislature and is really abdication of its essential
function in this matter; and if it is a case of delegation
it suffers from the vice of excessive delegation. We are
therefore of the opinion that the two cases of the Bombay
High Court are not correctly decided.
it is not in dispute that the amendments to the Act by which
the power of the State Government was also conferred on the
Commissioner under sections 4, 5A and 6 of the Act were
made-
(1) [1951] S.C.R. 747.
918
by notifications under s. 3(4) of the 1958-Act. As we have
held that s. 3(4) of the 1958 Act is ultra vires the powers
of the legislature and as the Commissioner had no power
under the Act before such amendments to ss. 4, 5-A and 6
were made under s. 3(4) the notifications issued in this
case under ss. 4 and 6 must fall and must be quashed.
In the view we have taken it is unnecessary to consider the
other points which have been raised in these petitions. We
would therefore allow the petitions and quash the
notifications under ss. 4 and 6 of the Act issued by the
Commissioner in the present ,cases.
Petitions allowed.
(1) [1951] S.C.R. 747.
919