{"id":180806,"date":"1970-02-05T00:00:00","date_gmt":"1970-02-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-sanjeevi-naidu-etc-etc-vs-state-of-madras-and-anr-on-5-february-1970"},"modified":"2015-07-20T19:00:08","modified_gmt":"2015-07-20T13:30:08","slug":"a-sanjeevi-naidu-etc-etc-vs-state-of-madras-and-anr-on-5-february-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-sanjeevi-naidu-etc-etc-vs-state-of-madras-and-anr-on-5-february-1970","title":{"rendered":"A. Sanjeevi Naidu Etc. Etc vs State Of Madras And Anr on 5 February, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
A. Sanjeevi Naidu Etc. Etc vs State Of Madras And Anr on 5 February, 1970<\/div>\n
Equivalent citations: 1970 AIR 1102, \t\t 1970 SCR (3) 505<\/div>\n
Author: K Hegde<\/div>\n
Bench: Hegde, K.S.<\/div>\n
           PETITIONER:\nA.   SANJEEVI NAIDU ETC.  ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MADRAS AND ANR.\n\nDATE OF JUDGMENT:\n05\/02\/1970\n\nBENCH:\nHEGDE, K.S.\nBENCH:\nHEGDE, K.S.\nHIDAYATULLAH, M. (CJ)\nSHAH, J.C.\nGROVER, A.N.\nRAY, A.N.\nDUA, I.D.\n\nCITATION:\n 1970 AIR 1102\t\t  1970 SCR  (3) 505\n 1970 SCC  (1) 404\n CITATOR INFO :\n RF\t    1971 SC1002\t (5)\n E\t    1973 SC 974\t (2)\n RF\t    1973 SC1461\t (223)\n R\t    1974 SC2192\t (33,34,47,131)\n R\t    1978 SC  68\t (133,146,173,211)\n RF\t    1982 SC 149\t (709)\n RF\t    1987 SC2106\t (6)\n\n\nACT:\nMotor  Vehicles Act 4 of 1939, s. 68(c)-Validity  of  scheme\nframed upon formation of requisite opinion by Secretary\t and\nnot Minister.  Rule 23-A authorising Secretary-Validity\t of-\nConstitution of India, Art. 166(3)-Scope of.\n\n\n\nHEADNOTE:\nA draft scheme for the nationalisation of certain  transport\nroutes\twas prepared and published by the  respondent  State\nGovernment  under Section 68(C) of the Motor Vehicles Act  4\nof  1939.  The validity of the scheme was challenged by\t the\nappellants, who were private stage carriage operators, in  a\npetition under Article 226 of the Constitution but the peti-\ntion was dismissed by the High Court.\nIn  appeal  to\tthis Court the validity of  the\t scheme\t was\nmainly\tchallenged on the ground that the opinion  requisite\nunder  Section 68(C) was not formed by the State  Government\nbut  by the Secretary to the Government acting\tpursuant  to\npowers\tconferred  on  him under Rule  23-A  of\t the  Madras\nGovernment Business Rule.  It was further contended that the\nsaid   rule   was  ultra  vires,  the  provisions   of\t the\nConstitution; Parliament has conferred powers under Section,\n68-C  to  a  designated\t authority and\tthat  power  can  be\nexercised  only by the authority specified and no one  else.\nThe  authority concerned in the present case was  the  State\nGovernment  and\t it could not have  delegated  is  statutory\n'functions  to\tany one else.  By Government was  meant\t the\nGovernor aided and advised by his Ministers.  The  requisite\nopinion should therefore have been formed by the Minister to\nwhom the business had been allocated under the Rules.\nHELD  : The functions under the Motor Vehicles Act had\tbeen\nallocated  by the Governor to the Transport  Minister  under\nthe  Rules  and\t the Secretary of  that\t Ministry  had\tbeen\nvalidly\t authorised under Rule 23-A to take action under  s.\n68(C) of the Act.\nIn  the\t very  nature  of things,  neither  the\t Council  of\nMinisters  nor\tan  individual Minister can  attend  to\t the\nnumerous matters that come up before the Government.   Those\nmatters\t have  to  be attended to  and\tdecisions  taken  by\nvarious\t officials at various levels.  When those  officials\ndischarge the functions allotted to them, they are doing  so\nas  limbs of the Government and not as persons to  whom\t the\npower of the Government had been delegated. [513 G]\nUnder  our  Constitution,  the\tGovernor  is  essentially  a\nconstitutional head; the administration of the State is\t run\nby  the\t Council  of  Ministers. in  order  to\tobviate\t the\ndifficulty that would arise if the Council of Ministers\t had\nto  deal with every matter, the Constitution has  authorised\nthe  Governor  under sub-article (3) of the Article  166  to\nmake  rules  for  the more  convenient\ttransaction  of\t the\nbusiness  of  the  Government  of  the\tState  and  for\t the\nallocation   amongst  its  Ministers  of  the  business\t  of\nGovernment.   All  matters  excepting  those  in  which\t the\nGovernor  is  required to act in his discretion have  to  be\nallocated to one or the other of the Ministers on\n506\nthe  advice  of the Chief Minister.  Apart  from  allocating\nbusiness  among\t the Ministers, the Governor can  also\tmake\nrules  on  the advice of his Council of Ministers  for\tmore\nconvenient  transaction\t of  business.\t He  can  not\tonly\nallocate the various subjects amongst the Ministers but\t may\ngo  further and on the advice of his Ministers, designate  a\nparticular  official to discharge any  particular  function.\n[511 F]\nThe  cabinet  is responsible to the  Legislature  for  every\naction taken in any of the Ministries.\tThis is the  essence\nof  joint responsibility.  That does not mean that each\t and\nevery decision must be taken by the cabinet.  The  political\nresponsibility\tof  the Council of Ministers  does  not\t and\ncannot\t predicate  the\t personal  responsibility   of\t the\nMinisters  to discharge all or any of -the functions of\t the\nGovernment.  Similarly an individual Minister is responsible\nto, the Legislature, for every action taken or omitted to be\ntaken\tin  his\t ministry.   This  again  is   a   political\nresponsibility\tand not personal responsibility.   In  every\nwell-planned administration, most of the decisions are taken\nby  the civil servants who are likely to be experts and\t not\nsubject to political pressure.\tThe Minister is not expected\nto  burden himself with the day-to-day administration.\t His\nprimary function is to lay down the policies and  programmes\nof  his ministry while the Council of Ministers\t settle\t the\nmajor policies and programmes of the, Government. [512 A]\nEmperor\t v.  Sibnath Banerjee & Ors.  L.R. 72 I.A.  p.\t241;\nKalyan\tSingh  v. State of U.P.<\/a> [1962] Supp.  2\t S.C.R.\t 76;\nIshwarlal  Girdharlal  Joshi v. State of Gujarat  and<\/a>  anr.,\n[1968]\t2  S.C.R.  266,\t Capital  Multipurpose\t Cooperative\nSociety\t v. State of Madhya Pradesh and Ors.   Civil  Appeal\nNo. 2201\/1966 decided on 30-3-1967; referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 397, 400 to
\n402, 404 to 417, 422 to 4.41, 451, 1158 to 1161, 1176,\t1178
\nto 1181, 1204, 1207 and 1407 of 1969.\n<\/p>\n
Appeals from the judgments and orders dated January 6,\t1969
\nof the Madras High Court in Writ petitions Nos. 846 of\t1968
\netc.\n<\/p>\n
K.   K. Venugopal, K. R. Nambiar and A. S. Nambiar, for\t the
\nappellants  (in C.As. Nos, 397, 400 to 402, 422,,  423,\t 441
\nand 451 of 1969).\n<\/p>\n
M.   C. Chagla, V. Subramaniam, V. T. Gopalan, Radharani,
\nC.   S.\t Prakasa Rao and K. Jayaram,<\/a> for the appellant\tI  s
\n(in.  C.As. Nos. 404 to 417, 1179, 1180 of 1407 of 1969).
\nM.   K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the
\nappellant (in C.A. No. 1176 of 1969).\n<\/p>\n
R.   V.\t S. Mani,<\/a> for the appellants (in C.As. Nos.  424  to
\n428, 1158 to 1161 and 1207 of 1969).\n<\/p>\n
A.   K.\t Sen, C. A. Prakasa Rao and R.\tGopalakrishnan,\t for
\nthe  appellants\t (in C.As. Nos. 429, 431 to 438,  440,\t441,
\n1178 and 1181 of 1969).\n<\/p>\n
C.   S. Prakasa Rao, A. R. Ramanathan and R. Gopalakrishnan,
\nfor the appellant (in C.A. No. 430 of 1969).\n<\/p>\n
507<\/span><\/p>\n
C.   S.\t Prakasa Rao, R. Gopalakrishnan and  Sudhir  Khanna,
\nfor the appellant (in C.A. No. 439 of 1969).
\nC.   S. Prakasa Rao, K. K. Venugopal and R.  Gopalakrishnan,
\nfor the appellant (in C.A. No. 1204 of 1969).
\nNiren  De, Attorney General for India and A. V. Rangam,\t for
\nthe respondents (in C . A. No. 397 of 1969).\n<\/p>\n
S.   V. Gupte and A. V. Rangam, for the respondents (in C.A.
\nNo. 400 of 1969).\n<\/p>\n
A.   V. Rangam, for the respondents (in C.A. Nos. 401,\t402,
\n404  to\t 417, 422 to 441, 451, 1158 to 1161, 1176,  1178  to
\n1181, 1204, 1207 and 1407 of 1969).\n<\/p>\n
The Judgment of the Court was delivered by
\nHegde,\tJ.  These 52 appellants are private  stage  carriage
\noperators  in  the  State of Tamil  Nadu.   They  have\tbeen
\noperating  in various routes in that State.  Some  of  those
\nroutes\tare proposed to be rationalised.  A draft scheme  of
\nnationalisation has been prepared and published under s.  68
\n(C)  of the Motor Vehicles Act (Central Act IV of 1939)\t (to
\nbe  hereinafter referred to as ‘the Act’).  The validity  of
\nthe  -draft scheme was challenged by the  appellants  before
\nthe High Court of Madras under Art. 226 of the Constitution.
\nIncidentally  the validity of some of the provisions of\t the
\namending  Act  XVIII of 1968 (Madras Act) also\tcame  to  be
\nchallenged  in\tthose petitions.  A division  bench  of\t the
\nMadras\tHigh  Court consisting of Anantanarayanan  C.J.\t and
\nNatesan\t J. have dismissed those petitions.  As against\t the
\ndecision  of the High Court these appeals have been  brought
\non  the\t strength  of the certificates\tissued-by  the\tHigh
\nCourt.\n<\/p>\n
In  these  appeals  we\tare  primarily\tconcerned  with\t the
\nvalidity of the draft scheme under challenge.  The ground on
\nwhich  it is challenged is that the opinion requisite  Under
\ns. 68 (C) of the Act was not formed by the State  Government
\nbut  by the Secretary to the government in  the\t Industries,
\nLabour\tand Housing Department, acting in pursuance  of\t the
\npowers\tconferred  on  him under rule 23(A)  of\t the  Madras
\nGovernment  Business Rules (to be, here inafter referred  to
\nas  ‘the Rules’).  The contention of the appellants is\tthat
\nthe  said rule is ultra vires the provisions of the  Consti-
\ntution.\t There is no dispute that if the rule in question is
\nvalid,\tthe challenge directed against the &aft scheme\tmust
\nfail.\tThe High Court has opined that that rule is a  valid
\nrule.\tIt  is the correctness of that\tconclusion  that  is
\nprimarily in issue in these, appeals.\n<\/p>\n
508<\/span><\/p>\n
Section 68(C) prescribes :\n<\/p>\n
“Where\tany State transport undertaking is of  opinion\tthat
\nfor  the  purpose  of  providing  an  efficient,   adequate,
\neconomical and properly coordinated road transport  service,
\nit  is necessary in the public interest that road  transport
\nservices in general or any particular class of such  service
\nin relation to any area or route or portion .thereof  should
\nbe  run\t and operated by the  State  transport\tundertaking,
\nwhether\t to  the  exclusion, complete or  partial  of  other
\npersons\t or otherwise, the State transport  undertaking\t may
\nprepare\t a  scheme giving particulars of the nature  of\t the
\nservices proposed to be rendered, the area or route proposed
\nto be covered and such other particulars respecting  thereto
\nas  may be prescribed, and shall cause every such scheme  to
\nbe published in the Official Gazette and also in such  other
\nmanner as the State Government may direct.”
\nThis  section requires that the State transport\t undertaking
\nmust form the opinion contemplated therein.  In the State of
\nTamil Nadu, the State transport undertaking is a  department
\nof  the State government.  Therefore the  necessary  opinion
\nshould\thave  been formed by the State government.   It\t was
\nurged\ton   behalf  of\t the  appellants  that\t under\t our
\nconstitutional set up, the requisite opinion could have been
\nformed either by the Council of Ministers or the Minister to
\nwhom  the business in question had been allocated under\t the
\n‘Rules’.   The\tsame  could  not have  been  formed  by\t the
\n‘Secretary  who\t is merely an official and that too  by\t the
\nSecretary who is not the head of the department to which the
\nfunctions under the Act had been assigned.  The\t contentions
\nadvanced  on  behalf of the appellants proceed\tthus  :\t The
\nexecutive  power  of the State vests in the  Governor  (Art.\n<\/p>\n
154).  In the exercise of that power he has to be aided\t and
\nadvised by the Council of Ministers with the Chief  Minister
\nat  the head (Art. 163(1)) but the Governor can\t make  rules
\nfor  more  convenient  transaction of the  business  of\t the
\ngovernment  of\tthe  State  and\t for  the  allocation  among
\nMinisters  of  the  said business in so far  as\t it  is\t not
\nbusiness  with respect to which the Governor is by or  under
\nthe  Constitution required to act in his  discretion,  (Art.
\n166(3)).   A Minister can only deal with the  business\tthat
\nhas been allocated to him by the Governor under ‘the Rules’.
\nHe is not competent to deal with any other business.   Motor
\nVehicles Act has been allocated to the Home Department.\t Mr.
\nKarunanidhi, the Transport Minister was not in-charge of the
\nHome  Department.  Therefore his department could  not\thave
\ndealt  with  functions arising under the Act.\tFurther\t the
\nGovernor  could\t not  have  allocated  any  business  to   a
\nSecretary.   Hence  in\tmaking\trule  23(A),  the   Governor
\nexceeded the powers -conferred on him under Art. 166(3).\n<\/p>\n
509<\/span><\/p>\n
On  the other hand, it was urged on behalf of the  State  of
\nTamil  Nadu  that originally the functions under  the  Motor
\nVehicles  Act had been allocated to the Home Department\t but
\nwhen  Mr.  Annadurai formed the D.M.K. government  in  Tamil
\nNadu in 1967, the Home Department as such was not  allocated
\nto  any\t Minister.  The various subjects  included  in\tthat
\ndepartment were split up and distributed amongst the various
\nMinisters.   Transport\twas allocated  to  Mr.\tKarunanidhi.
\nMotor  Vehicles\t Act  as  such\twas  not  allocated  to\t any
\nMinister.   The department of Transport\t included  functions
\nunder the Motor Vehicles Act as well.  Ever since the D.M.K.
\nministry was formed, the functions under the Motor  Vehicles
\nAct  were  dealt  with by the Transport\t ministry.   At\t the
\ninstance   of  the  Transport  Minister,  Mr.\tKarunanidhi,
\nGovernor framed rule 23(A) for the more convenient discharge
\nof  the\t business.   On behalf of  the\tgovernment,  it\t was
\nfurther\t urged\tthat Art. 166(3) has two, parts\t namely\t (1)
\nrules for the more convenient transaction of the business of
\nthe  government\t of  the State and  (2)\t rules\trelating  to
\nallocation of business of the State among the Ministers.  It
\nwas   said  that  after\t allocating  the  business  of\t the
\ngovernment  among  ‘various Ministers, it was  open  to\t the
\nGovernor on the advice of the ministry to make rules for the
\nconvenient discharge of the business allocated.\t Rule  23(A)
\nis one such rule made under Art. 166(3).  Hence its validity
\nis not open to question.\n<\/p>\n
The impugned rule 23(A) was introduced for the first time by
\nG.O.Ms.\t No. 2715 Public dated 22-12-67.  Under sub-cl.\t (1)
\nof that rule, it is provided that powers and functions which
\nState  transport undertaking may exercise under s. 68(C)  of
\nthe  Act shall be exercised and discharged on behalf of\t the
\nState  government  by  the Secretary to\t the  Government  of
\nMadras\tin the Industries.  Labour -and Housing\t Department.
\nThe rule further provides that cases relating to such powers
\nand  functions of the State transport undertaking  under  s.
\n68(C)  need  not  be submitted to  the\tMinister  in-charge.
\nUnder sub-cl. (2) of that rule, the powers and functions  of
\nthe State government under s. 68(D) of the Act and the rules
\nrelating thereto are directed to be exercised and discharged
\nby the Secretary to the government in the Home Department.
\nRule 4 of ‘the Rules’ deals with allocation and disposal  of
\nbusiness.  It provides. that the business of the  Government
\nshall  be transacted in the department specified in the\t 1st
\nSch.   and   classified\t and   distributed   between   those
\ndepartments as laid down therein.  Rule 5 says that Governor
\nshall,\ton  the\t advice\t of the\t Chief\tMinister  allot\t the
\nbusiness  of the government among the  Ministers,  assigning
\none or more departments to the charge of a Minister but\t the
\nproviso\t to that rule says that nothing in that\t rule  shall
\nprevent\t the  assigning of one department to the  charge  of
\nmore than one Minister.\n<\/p>\n
510<\/span><\/p>\n
Rule  6 prescribes that each department of  the\t secretariat
\nshall be under a Secretary who shall be the official head of
\nthe  department.   Under rule 7, the  Council  of  Ministers
\nconstituted   under   Art  163(1)   is\t held\tcollectively
\nresponsible for all the executive orders issued in the\tname
\nof  the-Governor  in  accordance with  rules,  whether\tsuch
\norders are authorised, by an individual Minister on a matter
\npertaining to his portfolio or as a result of the discussion
\nat the meeting of the Council of Ministers.  Rule 9 provides
\nthat  without  prejudice to the provisions of rule  7,\tthe-
\nMinister  in-charge  of\t a  department\tshall  be  primarily
\nresponsible  for the disposal of the business pertaining  to
\nhis department.\t Section III of the “Rules” containing rules
\n21  to 30 deal with the departmental disposal  of  business.
\nRule 21 says that except as otherwise provided by any  other
\nrule  cases shall ordinarily be disposed of by or under\t the
\nauthority  of  the Minister in-charge who may  by  means  of
\nstanding orders give such directions as he may think fit for
\nthe  disposal  of cases in the department;  copies  of\tsuch
\nstanding orders shall be sent to the Governor -and the Chief
\nMinister.   Rule 22 provides that each – Minister  shall  by
\nmeans  of standing orders arrange with the secretary of\t the
\ndepartment  what  matters  or class of\tmatters\t are  to  be
\nbrought\t to  his personal notice; copies  of  such  standing
\norders\thas  to\t be  sent to  the  Governor  and  the  Chief
\nMinister.   Rule  23  prescribes that  except  as  otherwise
\nprovided  in the rules, all cases shall be submitted to\t the
\nMinister  in-charge  by the secretary of the  department  to
\nwhich they belong.  Then comes rule 23(A) to which reference
\nhas already been made.\n<\/p>\n
The  first  question that has to be decided is\twhether\t the
\nfunctions under the Motor Vehicles Act had been assigned  to
\nMr.  Karunanidhi,  the Minister for Transport.\tIt  is\ttrue
\nthat when the various departments were reorganized in  1961,
\nMotor Vehicles Act as well as Transport were included in the
\nHome Department.  But when the D.M.K. ministry came to power
\nafter  the  1967 general elections, the Home  Department  as
\nsuch  was  not\tallocated  to  any  Minister.\tThe  various
\nsubjects  included  in\tthat  department  were\t distributed
\namongst\t several Ministers.  Transport was allocated to\t the
\nTransport  Minister.   Motor Vehicles Act as  such  was\t not
\nallocated to any Minister.  The allocation of business among
\nthe various Ministers appears to have been made under  broad
\nheads.\t In  1961 while allocating subjects to\tthe  various
\ndepartments there was a detailed and exhaustive\t enumeration
\nof  the subjects.  But that method was not adopted  in\t1967
\nwhile distributing the business of the government among\t the
\nvarious Ministers.  The functions under the Act\t undoubtedly
\nrelate\tto Transport department.  It cannot be assumed\tthat
\nfunctions  under  the  Act  had not  been  assigned  to\t any
\nMinister.   It\tis proved that those  functions\t were  being
\ndischarged  by the Minister for Transport.  ‘Hence we  agree
\nwith the High Court that those functions had been
\n511<\/span>
\nallocated  to  the  Transport Minister and  that  the  State
\ntransport  undertaking\twas  being  run\t by  the   Transport
\nministry.\n<\/p>\n
Mr.  Karunanidhi has in his affidavit filed before the\tHigh
\nCourt  sworn to the fact that rule 23(A) was framed  at\t his
\ninstance.   Admittedly he could have assigned the  functions
\nunder  s.  68(C) of the Act to the  Transport  Secretary  by
\nmaking\ta  standing order under rule 22.  If he\t could\thave
\ndone  that,  we\t fail to see why he  could  not\t advise\t the
\nGovernor through the Chief Minister to make rule 23 (A).
\nIt was urged on behalf of the appellants that the parliament
\nhas  conferred\tpowers\tunder  s. 68(C)\t of  the  Act  to  a
\ndesignated  authority.\tThat power can be exercised only  by
\nthat authority and by no one, else.  The authority concerned
\nin the present case is the State government.  The government
\ncould not have delegated its statutory functions to any\t one
\nelse.\tThe government means the Governor aided and  advised
\nby  his\t Ministers.  Therefore the required  opinion  should
\nhave  been formed by the Minister to whom the  business\t had
\nbeen allocated by ‘the Rules’.\tIt was further urged that if
\nthe functions of the Government can be discharged by any one
\nelse, then the doctrine of ministerial responsibility  which
\nis  the\t very  essence of the  cabinet\tform  of  government
\ndisappears;  such  a situation is  impermissible  under\t our
\nConstitution.\n<\/p>\n
We  think that the above submissions advanced on  behalf  of
\nthe  appellants\t are  without  force  and  are\tbased  on  a
\nmisconception of the principles underlying our Constitution.
\nUnder  our  Constitution,  the\tGovernor  is  essentially  a
\nconstitutional\thead; the administration of State is run  by
\nthe Council of Ministers.  But in the very nature of things,
\nit  is impossible for the Council of Ministers to deal\twith
\neach and every matter that comes before the Government.\t  In
\norder  to  obviate  that  difficulty  the  Constitution\t has
\nauthorised  the Governor under sub-Art. (3) of Art.  166  to
\nmake rules. for the more convenient transaction of  business
\nof  the\t government  of the State  and\tfor  the  allocation
\namongst its Ministers, the business of the government.\t All
\nmatters excepting those in which Governor is required to act
\nin  his discretion have to be allocated to one or the  other
\nof the Ministers on the advice of the Chief Minister.  Apart
\nfrom  allocating business among the Ministers, the  Governor
\ncan  also  make\t rules\ton the\tadvice\tof  his\t Council  of
\nMinisters  for more convenient transaction of business.\t  He
\ncan,  not  only allocate the various  subjects\tamongst\t the
\nMinisters  but\tmay go further and  designate  a  particular
\nofficial  to  discharge any particular function.   But\tthis
\nagain  he  can\tdo  only on the advice\tof  the\t Council  of
\nMinisters.\n<\/p>\n
512<\/span><\/p>\n
The cabinet is responsible, to the legislature for every act
\nion taken in any of the ministries.  That is the essence  of
\njoint  responsibility.\t That does not mean  that  each\t and
\nevery decision must be taken by the cabinet.  The  political
\nresponsibility\tof  the Council of Ministers  does  not\t and
\ncannot\t predicate  the\t personal  responsibility   of\t the
\nMinisters  to  discharge  all or  any  of  the\tgovernmental
\nfunctions.  Similarly an individual Minister is\t responsible
\nto  the legislature for every action taken or omitted to  be
\ntaken\tin  his\t ministry.   This  again  is   a   political
\nresponsibility\tand not personal responsibility.   Even\t the
\nmost  hard working minister cannot attend to every  business
\nin his department.  If he attempts to do it, he is bound  to
\nmake  a\t mess  of his department.   In\tevery  well  planned
\nadministration, most of the decisions are taken by the civil
\nservants  who  are likely to be experts and not\t subject  to
\npolitical pressure.  The Minister is not expected to  burden
\nhimself\t with  the day to day administration.\tHis  primary
\nfunction is to. lay down the policies and programmes of\t his
\nministry  while\t the Council of Ministers settle  the  major
\npolicies  and programmes of the ‘government.  When  a  civil
\nservant takes a decision, he does not do it as a delegate of
\nhis Minister.  He does it -on behalf of the government.\t  It
\nis  always  open to a Minister to call for any file  in\t his
\nministry  and pass orders.  He may also issue directions  to
\nthe  officers  in  his ministry regarding  the\tdisposal  of
\ngovernment  business  generally or as regards  any  specific
\ncase.\tSubject\t to  that  over\t all  power,  the   officers
\ndesignated  by the ‘Rules’ or the standing orders, can\ttake
\ndecisions  on behalf of the government.\t These officers\t are
\nthe limbs of the government and not its delegates.
\nIn Emperor v. Sibnath Banerji and ors. (1) construing s. 5 9
\n(3)  of\t the  Government of India  Act,\t 1935,\ta  provision
\nsimilar to Art. 166(3), the Judicial Committee held that  it
\nwas within the competence of the Governor to empower a civil
\nservant\t  to  transact\tany  particular\t business   of\t the
\ngovernment by making appropriate rules.\t In that case  their
\nLordships  further observed_ that the Ministers\t like  civil
\nservants are subordinates to the Governor.  In Kalyan  Singh
\nv.  State of U.P.<\/a>(2) : this Court repelling  the  contention
\nthat  the  opinion formed by an official of  the  government
\ndoes not -fulfil the requirements of s. 68 (C) observed :
\n“The opinion must necessarily be formed by somebody to whom,
\nunder the rules of business, the conduct of the business  is
\nentrusted  and that opinion, in law, will be the opinion  of
\nthe State Government.  It is stated in the counter-affidavit
\nthat  all  the\tconcerned officials  in\t the  Department  of
\nTransport  considered the draft scheme and the\tsaid  scheme
\nwas  finally  approved\tby the Secretary  of  the  Transport
\nDepartment before the
\n(1) L. R. 72 T. A. p. 241.\n<\/p>\n
(2) [1962] Sup. (2) S. C. R. p .76.\n<\/p>\n
\t      513<\/span><\/p>\n
notification  was issued.  It is not denied that the  Secre-
\ntary  of  the said Department has power under the  rules  of
\nbusiness  to  act for the State Government in  that  behalf.
\nWe, therefore, hold that in the present case the opinion was
\nformed by the State transport undertaking within the meaning
\nof s. 68 (C) of the Act, and that, there was nothing illegal
\nin the manner of initiation of the said Scheme”.
\nIn Ishwarlal Girdharlal Joshi etc. v. State of Gujarat and
\nanr.   (  3 )  this Court rejected_the contention  that\t the
\nopinion formed by the Deputy Secretary under s. 17(1) of the
\nLand Acquisition Act cannot be considered as the opinion  of
\nthe  State  government.\t  After referring to  the  rules  of
\nbusiness  regulating  the government  business,\t this  Court
\nobserved at p. 282
\n“In  our  case\tthe Secretaries\t concerned  were  given\t the
\njurisdiction  to  take action on behalf\t of  Government\t and
\nsatisfy\t themselves about the need for acquisition under  s.
\n6, the urgency of the matter and the existence of waste\t and
\narable\tlands for the application of sub-ss. (1) and (4)  of
\ns.   17.   In  view  of\t the  Rules  of\t business  and\t the
\nInstructions their determination became the determination of
\nGovernment and no exception could be taken.”
\nIn  Capital Multi-purpose Co-operative Society v.  State  of
\nMadhya\tPradesh\t and Ors. (1), this Court dealing  with\t the
\nscope  of  s.  68 (D) of the Act  observed  that  the  State
\nGovernment  obviously is not a natural person and  therefore
\nsome  natural  person has to give hearing on behalf  of\t the
\nState Government and hence the hearing given by the  special
\nsecretary  pursuant  to the power conferred on\thim  by\t the
\nbusiness rules framed under Art. 166(3) is a valid hearing.
\nAs  mentioned earlier in the very nature of things,  neither
\nthe  Council  of Ministers nor an  individual  Minister\t can
\nattend\tto  the\t numerous matters that come  up\t before\t the
\nGovernment.   Those  matters  have to  be  attended  to\t and
\ndecisions  taken  by various officials\tat  various  levels.
\nWhen  those  officials discharge the functions\tallotted  to
\nthem,  they are doing so as limbs of the government and\t not
\nas  persons  to whom the power of the  government  had\tbeen
\ndelegated.  In Halsbury Laws of England Vol.  I 3rd Edn.  at
\np. 170, it is observed :\n<\/p>\n
“Where functions entrusted to a Minister are performed by an
\nofficial employed-in the Minister’s department
\n(1)  [1968] 2, S. C R. p. 266.\n<\/p>\n
(2)  C. A. 2201 of 1966 decided on 30.3.1967.
\nL8Sup CI\/70-3
\n514<\/span>
\nthere  is in law no delegation because constitutionally\t the
\nact or decision of the official is that of the Minister.”
\nSimilar\t  view\t has  been  expressed  in   “Principles\t  of
\nAdministrative\tLaw” by Griffith and Street.  That  is\talso
\nthe  view  taken  by  Sir  Ivor\t Jennings  in  his  “Cabinet
\nGovernment”.\n<\/p>\n
For the reasons mentioned above, we are of opinion that\t the
\nfunctions under the Motor Vehicles Act had been allocated by
\nthe Governor to the Transport Minister under “the Rules” and
\nthe  Secretary of that ministry had been validly  authorised
\nunder rule 23-A to take action under S. 68 (C) of the Act.
\nThe  validity of some of the provisions of Madras Act 18  of
\n1968 which amended the Act was canvassed before us,.  It  is
\nnot  necessary to go into those questions for  deciding\t the
\nvalidity  of  the impugned scheme.  Those questions  can  be
\nmore appropriately gone into and decided if ‘and when action
\nis  taken  on the strength of those  provisions.   Hence  we
\nleave open those questions.\n<\/p>\n
In the result these appeals fail and they are dismissed with
\ncosts-hearing fee one set.\n<\/p>\n
R.K.P.S.\t\t\t\t\t     Appeals\ndismissed.\n515<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India A. Sanjeevi Naidu Etc. Etc vs State Of Madras And Anr on 5 February, 1970 Equivalent citations: 1970 AIR 1102, 1970 SCR (3) 505 Author: K Hegde Bench: Hegde, K.S. PETITIONER: A. SANJEEVI NAIDU ETC. ETC. Vs. RESPONDENT: STATE OF MADRAS AND ANR. DATE OF JUDGMENT: 05\/02\/1970 BENCH: HEGDE, K.S. BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-180806","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nA. Sanjeevi Naidu Etc. 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