1. Challenge to the validity of a notification issued under Section 4 of the West Bengal Land Development and Planning Act, 1948, regarding land acquisition for public purpose. (Para 1 , 2 )
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1967 Supreme(SC) 13
SUPREME COURT OF INDIA
K. SUBBA RAO, C.J.I., J.C.SHAH, S.M. SIKRI, V. RAMASWAMI AND C.A. VAIDIALINGAM, JJ.
M/s. Bijoya Lakshmi Cotton Mills Ltd. (In both the Appeals), Appellant
Versus
State of W.B. and others (In both the Appeals), Respondents.
Civil Appeals Nos. 216 and 217 of 1964,
D/-18-1-1967.
Advocates appeared
Mr. Bishan Narain, Senior Advocate, (Mr. B. P. Maheshwari, Advocate, with him), for Appellant (In both the Appeals); Mr. B. Sen, Senior Advocate (M/s. D. N. Mukerjee and P. K. Bose, Advocates, with him), for Respondents Nos. 1, 2 and 4 (In both the Appeals); Mr. S. K. Roy Choudhury, Advocate and M/s. Rameshwar Nath, Mohinder Narain and P. L. Vohra, Advocates of M/s. Rajinder Narain and Co., for Respondent No. 3 (In both the Appeals).
Advocates:
B.P.MAHESHVARI, B.SAN, BISHAN NARAIN, D.N.MUKHERJI, MOHINDER NARAIN, P.K.BOSH, P.L.VOHRA, RAMESHWAR NATH ROY, S.K.ROY CHAUDHARY
B.P.MAHESHVARI, B.SAN, BISHAN NARAIN, D.N.MUKHERJI, MOHINDER NARAIN, P.K.BOSH, P.L.VOHRA, RAMESHWAR NATH ROY, S.K.ROY CHAUDHARY
Authentication under Article 166(2) of the Constitution only confirms an order was made by the Governor and does not immunize it from legal challenge. Ministers may validly delegate executive functions to subordinates via Standing Orders unless the matter is specifically reserved for the Minister's personal attention.
Headnote:(A) Constitution of India - Articles 154(1), 166(1), (2), and (3) - Land Development and Planning Act - Sections 4 and 6 - Authentication of executive orders - Scope of Article 166(2) - Authentication of an order in the manner specified by the Governor only makes it conclusive that the order was made by the Governor; it does not preclude the order from being challenged on the ground that the Governor did not act in accordance with the law. (Para 16)
(B) Executive Power - Governor’s satisfaction - In matters where the Governor is not required to act in his discretion, the executive business of the State is transacted by Ministers. The personal satisfaction of the Governor is not necessary for every executive action taken in his name. (Para 16)
(C) Delegation of Power - Minister’s authority to delegate - A Minister-in-charge is empowered under the Rules of Business to delegate functions to subordinates through Standing Orders. Such delegation is valid provided the matter is not specifically reserved for the Minister's personal attention. (Para 16)
Facts of the case:
The State issued a notification under Section 4 of the Act to declare an area as a notified area for the purpose of establishing an agricultural colony. The notification and the subsequent declaration under Section 6 were signed by subordinate departmental officers. The appellant challenged the validity of these proceedings, contending that the Governor's personal satisfaction was required and that the Minister-in-charge had not personally dealt with the matter, which they argued was mandatory under the relevant Standing Orders of the department.
Findings of Court:
The court found that the notification issued under Section 4 did not fall under the categories of cases that required the Minister's personal attention. Specifically, the Standing Order referring to cases proposed by the Land Planning Committee applies only from the stage of preparing a development scheme under Section 5, and not at the initial stage of issuing a notification under Section 4, as the Committee has no statutory duty to be consulted at that stage.
Issues: Whether the notification issued under Section 4 of the Act was valid despite being issued by a subordinate officer without the personal attention of the Minister-in-charge, and whether authentication under Article 166(2) of the Constitution bars a challenge to the legality of such an order.
Ratio Decidendi: Authentication under Article 166(2) is directory and only confirms that the order was issued by the State Government or the Governor; it does not immunize the order from judicial review regarding its legality. Executive functions are delegated to Ministers and further to subordinates via Standing Orders. Since the initial notification under Section 4 does not involve the statutory functions of the Land Planning Committee, it did not require the Minister's personal intervention under the applicable Standing Orders.
Result: Appeals dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether executive orders issued by subordinate officers without the personal satisfaction of the Governor or Minister-in-charge violate constitutional provisions and departmental standing orders. (Para 4 , 9 , 10 , 14 )
3. Authentication under Article 166(2) is directory; Governor's personal satisfaction is not required for non-discretionary business; delegation to subordinates via standing orders is legally permissible. (Para 11 , 12 , 16 , 18 , 19 , 20 , 21 )
4. Executive actions authenticated under Article 166(2) are valid if the Minister-in-charge has legally delegated the function to subordinates via standing orders. (Para 16 , 23 )
5. Appeals dismissed and the notification issued under Section 4 of the Act upheld as valid. (Para 25 )
6. Does authentication of an order in the name of the Governor under Article 166(2) of the Constitution preclude a challenge to its legality?
No. Authentication only makes it conclusive that the order was made by the Governor. It does not prevent the court from adjudicating whether the Governor acted in accordance with the law while making the order. (Para 12 , 16 )
7. Is the personal satisfaction of the Governor required for every executive action taken in their name?
No. For business not requiring the Governor to act in their discretion, executive action is carried out by Ministers. The Governor's personal satisfaction is not necessary for such routine departmental business. (Para 11 , 16 )
8. Can a Minister-in-charge delegate executive functions to subordinate officers?
Yes. Under the Rules of Business issued by the Governor under Article 166(3), a Minister-in-charge may, through standing orders, delegate the disposal of certain cases or classes of cases to subordinates. (Para 11 , 12 , 16 , 23 )
9. How is the applicability of departmental standing orders determined when challenging the validity of an executive notification?
The court examines whether the specific matter falls under items reserved for the Minister's personal attention. If the matter is not reserved and delegation exists, the subordinate's action is valid. (Para 17 , 18 , 19 , 20 , 21 )
Judgement
VAIDIALINGAM, J. : These two appeals, on certificate, are directed against the judgment of the Calcutta High Court, in Appeals from Orders, Nos .397 and 398 of 1958, dated March 5, 1959, in so far as the High Court has held that the notification, issued by the State Government, under S. 4 of the West Bengal Land Development and Planning Act, 1948 (W. B. Act XXI of 1948) (hereinafter referred to as the Act), is valid. The appellant and respondents, in both the appeals, are the same and common questions arise for consideration in both.
2. The Society of Farmers and Rural Industrialists, of which the third respondent is the Secretary, requested the first respondent, the State of West Bengal, to acquire, compulsorily, certain lands for the establishment of an Agricultural Colony for creating better living conditions therein. The first respondent issued a notification, on February 4, 1955, under S. 4 of the Act, stating that an extent of about 28.59 acres of lands, more fully described therein, and situated in the villages of Ghola and Natagarh, is likely to be needed for a public purpose, viz., the establishment of an agricultural colony and the creation of better living conditions. There is no controversy that a major portion of the lands, comprised in this notification, belonged to the appellant-Mills. The said notification was published in the Calcutta Gazette, on February 17, 1955. This notification was signed by the Assistant Secretary, Land and Revenue Department of the Government of West Bengal.
3. The first respondent then directed the Society to prepare a development scheme and submit the same to the Collector, to enable him to hear objections as per the rules framed under the Act. On or about March 21, 1955, the Society submitted a development scheme and the Collector issued notice, under R. 5 (2) of the West Bengal Land Development and Planning Rules, 1948 (hereinafter referred to as the Rules), inviting objections, within the time specified therein, to the scheme being sanctioned. The objections filed by the appellant Mills, to the sanctioning of the scheme, were overruled by the Collector. On February 10, 1956, the Land Planning Committee, which is the prescribed authority, under the Act, recommended acceptance of the scheme submitted by the Society and for issue of a declaration, by the Government, under S. 6 of the Act. On July 21, 1956, the Government issued the declaration, under S. 6 of the Act, which, again, was published in the State Gazette, on August 9,1956. This declaration was signed by the Deputy Secretary, Land and Revenue Department, Government of West Bengal. On August 28, 1956, notice of the intention to take possession of the lands was issued under R. 8 of the Rules.
4. On September 13, 1956, the appellant-Mills filed, in the Calcutta High Court, a writ petition, Civil Rule No. 2620 of 1956, under Art. 226 of the Constitution, and prayed for a writ, in the nature of mandamus, to be issued directing the State Government and its officers, not to give effect or take any steps, on the basis of the notice issued. It also prayed for the issue of a writ, in the nature of certiorari, quashing the notification, under S. 4, and the declaration, under S. 6, issued by the State Government. Though the appellant raised several grounds of attack, as against the proceedings, leading up to the issue of the notice, under R. 8, the main point that appears to have been urged before the learned Single Judge, who heard the writ petition, was that, having due regard to the scheme of the Act and the materials available, it cannot be said that the Government have sanctioned any scheme, nor can Government be said to have been satisfied, before issuing the declaration under S. 6 of the Act, that the notified lands were needed for a public purpose. In short, the appellant s stand appears to have been that proceedings have been initiated by the Assistant Secretary of the Department and orders issued either by him or by the
