# M/S Ganesh Grain Store v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 368
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-21
- **Case number:** Misc. Single No. 3225 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-ganesh-grain-store-v-state-of-u-p-ors-45686
- **Pages:** 12

## Headnote

A. U.P. Krishi Utpadan Mandi Samiti Act,
1964 - Section 32 - Power of Revision
delegated to Director-Revision preferred
to
Director-transferred
to
Deputy
Director-Power
of
Revision
when
delegated
to
Director-it
become
a
function to be performed by himtherefore, Director can authorize any
officer to perform his functions including
delegated powers u/s 32.

Held, The power of Revision when delegated
to Director by virtue of Section 33 becomes a
function to be performed by Director under Act,
1964 and, therefore, Director can authorize any
other Officer to perform all or any of his
functions under Act, 1964 which includes
370 INDIAN LAW REPORTS ALLAHABAD SERIES
delegated powers to be performed by Director
under Section 32 of Act, 1964. In view thereof
I find myself unable to accept the contention of
learned counsel for petitioners that power
exercised by Deputy Director in deciding
Revision is bad in law as he had no jurisdiction
to decide Revision and Director had no power
to
authorize
Deputy
Director
to
decide
Revision. (Para 35)

Writ Petition dismissed. (E-9)

List of cases cited: -

## Text

1 All. M/S Ganesh Grain Store Vs. State of U.P. & Ors.
369
the other side should not be subjected to
serious injustice and that any admission
made in favour of the plaintiff conferring
right on him is not withdrawn."

14. In the light of the above
discussions it is clearly borne out that
application under Order 6 Rule 17 CPC
can be moved at any stage of the
proceedings, only such evidence can be
brought on record which are not within the
knowledge of the parties at the time when
the pleadings were filed. It is needless to
say that first written statement was brought
on record when the said relationship
between respondent No.1 and 2, who had
jointly filed the same, was quite good, but
subsequently
the
relationship
having
become strained which was a subsequent
development and this fact not having been
denied by the petitioner, it cannot be said
that this fact could have been brought on
record at an earlier point of time.

15. In view of the observations in the
above mentioned judgment of Hon'ble
Supreme Court and the discussions made
hereinabove, there is no error in exercise
of the discretion in accepting the written
statement by the Civil Judge (Senior
Division), Gonda, who has considered all
the facts and circumstances necessary in
allowing the application. The District
Judge has also considered all these
circumstances and arguments raised by the
petitioner and no infirmity could be
pointed out in any of the facts or points
decided by him. I do not find any infirmity
in the order of learned District Judge. The
petition is without merits and is hereby
dismissed.

16. Needles to say that after
acceptance of the additional written
statement, learned Civil Judge (Senior
Division), Gonda shall proceed to decide
the revision expeditiously and shall make
earnest endeavor to decide the same within
a period of one year from the date a
certified copy of this order is placed before
him, if there is no other legal impediment.

17. The petition is dismissed.
----------
(2020)1ILR 368

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.01.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Misc. Single No. 3225 of 2008
connected with
 Misc. Single No. 3271 of 2008 and Misc Single
No. 3272 of 2008

M/S Ganesh Grain Store ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Shafiq Mirza

Counsel for the Respondents:
C.S.C., N.C. Mehrotra

A. U.P. Krishi Utpadan Mandi Samiti Act,
1964 - Section 32 - Power of Revision
delegated to Director-Revision preferred
to
Director-transferred
to
Deputy
Director-Power
of
Revision
when
delegated
to
Director-it
become
a
function to be performed by himtherefore, Director can authorize any
officer to perform his functions including
delegated powers u/s 32.

Held, The power of Revision when delegated
to Director by virtue of Section 33 becomes a
function to be performed by Director under Act,
1964 and, therefore, Director can authorize any
other Officer to perform all or any of his
functions under Act, 1964 which includes
370 INDIAN LAW REPORTS ALLAHABAD SERIES
delegated powers to be performed by Director
under Section 32 of Act, 1964. In view thereof
I find myself unable to accept the contention of
learned counsel for petitioners that power
exercised by Deputy Director in deciding
Revision is bad in law as he had no jurisdiction
to decide Revision and Director had no power
to
authorize
Deputy
Director
to
decide
Revision. (Para 35)

Writ Petition dismissed. (E-9)

List of cases cited: -

1. Heinz India Private Limited and another Vs.
State of U.P. and others (2012) 5 SCC 443

2. Barium Chemicals Limited and another Vs. The
Co. Law Board and another AIR 1967 SC 295

3.Gwalior Rayon Silk Manufacturing (Wvg.) Co.
Ltd. Vs. The Assistant Commissioner of Sales
Tax and others (1974) 4 13 SCC 98

4. Director General, E.S.I. and another Vs. T.
Abdul Razak, etc. (1996) 4 SCC 708

5.Ravinder Kumar Pal and others Vs. Nideshak,
Karmchari Rajya Beema Sharam Chikitsalay
and others-Writ Petition (Writ-A) No. 786 of
1995

6.Director General, E.S.I. and another Vs. T.
Abdul Razak AIR 1996 SC 2292

7. Jamal Uddin Ahmad
Vs. Abu Saleh
Najmuddin and another (2003) 4 SCC 257

8. NGEF Ltd. Vs. Chandra Developers Pvt. Ltd.
and others (2005) 8 SCC 219

9. Sidhartha Sarawgi Vs. Board of Trustees for
the Port of Kolkata and others (2014) 16 SCC
248

10. Union of India Vs. B.V. Gopinath and others
(2014) 1 SCC 351

(Delivered by Hon'ble Sudhir Agarwal, J)

1. Heard Sri Shafiq Mirza, Advocate,
for petitioner; and, learned Standing
Counsel and Sri N.C. Mehrotra, Advocate,
for respondents in all these writ petitions.

2. Petitioner in Writ Petition No.
3225 of 2008 (hereinafter referred to as
"WP-1"), M/s. Ganesh Grain Store,
Raniganj Bazar, Ballia has filed WP-1
under Article 226 of Constitution praying
for issue of a writ of certiorari and quash
order dated 31.03.2008 (Annexure-6 to
WP-1) passed by Sri R.K. Arya, Deputy
Director (Administration), Krishi Utpadan
Mandi
Samiti,
Varanasi
dismissing
petitioner's Revision No. 993 of 2007
submitted under Section 32 of U.P. Krishi
Utpadan
Mandi
Samiti
Act,
1964
(hereinafter referred to as "Act, 1964").
Petitioner has also prayed for a writ of
certiorari to quash order dated 14.09.2007
(Annexure-9
to
WP-1)
issued
by
Additional
Legal
Adviser
informing
Regional Deputy Director, Mandi Samiti,
Varanasi that vide order dated 13.08.1999
he has been authorized to decide Revision
under Section 32 of Act, 1964. Petitioner
has also prayed for a writ of mandamus
commanding respondent-1 to exercise its
power under Section 33B of Act, 1964 and
also prayed that Section 20 of Act, 1964
be
declared
ultra
vires
and
unconstitutional.

3. Facts in brief, giving rise to WP-1,
are that vide Government Order dated
24.12.2001 (Annexure-1 to WP-1) two per
cent exemption in Mandi Fee and half
percent rebate in Development Cess was
granted, besides two per cent concession
in
Trade
Tax.
Petitioner
conducted
business
in
the
Financial
Years
(hereinafter referred to as "F.Y.") 2003-04,
2004-05,
2005-06.
The
exemption
aforesaid was granted for the F.Y. 2001 to
2006. Therefore, with the end of scheme,
petitioner's business also stood closed.
1 All. M/S Ganesh Grain Store Vs. State of U.P. & Ors.
371
However, petitioner received a letter dated
30.04.2007 issued by Mandi Samiti, Ballia
(respondent-5),
raising
demand
of
Rs.
10,22,622.90 stating that petitioner did not
deposit the bill of loading/shipment H Form
Second Copy and, therefore it was liable to pay
the aforesaid amount. A reminder demand
notice dated 22.05.2007 directing petitioner to
deposit the aforesaid amount was also
received. Thereafter, petitioner filed Revision
against the aforesaid orders before Director,
Mandi Samiti vide memo of Revision dated
31.07.2007. Before filing Revision, petitioner
filed
Writ
Petition
before
this
Court
challenging demand notice in which an interim
order was also passed but when petitioner
availed statutory remedy of Revision, Writ
Petition (MB) No. 6858 of 2007 was
dismissed vide judgment dated 17.09.2007
with a direction to competent authority to
decide Revision within a period of one month
from the date of receipt of certified copy.
Consequently, impugned revisional order has
been passed on 31.03.2008 by Deputy Director
rejecting petitioner's Revision.

4. Learned counsel for petitioner, Sri
Shafiq Mirza, in WP-1 has challenged the
aforesaid order of Revision on the ground
that Deputy Director had no authority or
jurisdiction to decide Revision inasmuch
Director, Mandi Samiti himself was
exercising delegated power and had no
authority to further delegate or subdelegate
his
power,
therefore,
subdelegation by Director to Deputy Director
is wholly without jurisdiction. In this
regard, he placed reliance on Sections
2(h), 26-I, 27, 33 and 33-A of Act, 1964
and Rule 135 of U.P. Krishi Utpadan
Mandi Rules, 1965 (hereinafter referred to
as "Rules, 1965").

5. On behalf of Mandi Samiti,
Counter Affidavit has been filed stating
that validity of Section 20 of Act, 1964 has
been upheld by this Court. Further, power
to decide Revision has been conferred by
Board upon Additional Director, Deputy
Director as well as Regional Deputy
Director.

6. On the contrary, Sri N.C.
Mehrotra, learned counsel appearing for
respondent-Mahdi Samiti, submitted that
Board has delegated the power with
authority of further sub-delegation and
therefore, Deputy Director has validly
exercised revisional power. He placed
reliance on Supreme Court's judgment in
Heinz
India
Private
Limited
and
another Vs. State of U.P. and others
(2012) 5 SCC 443.

7. Facts in both the connected Writ
Petition No. 3271 of 2008 (hereinafter referred
to as "WP-2") and Writ Petition No. 3272 of
2008 (hereinafter referred to as "WP-3") are
also similar inasmuch therein also order passed
by Deputy Director deciding petitioner's
Revision vide order dated 31.03.2008 are
under challenge on the same grounds,
therefore, I am not repeating the facts since
question of law raised in all these Writ
Petitions is common and same.

8. Thus issue up for consideration in all
these Writ Petitions is "whether Director was
competent to delegate power of deciding
Revision filed under Section 32 of Act, 1964
upon Deputy Director". In other words,
"whether power conferred upon Deputy
Director to decide Revision under Section 32
of Act, 1964 is validly exercised power", and
"whether Revision has been decided by
competent statutory authority or not".

9. In order to to examine the
aforesaid issue I may have a bird eye view
of Act, 1964.
372 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Act, 1964 was enacted with an
objective to regulate Agricultural Markets
in State of U.P. with a view to achieve
following objects:

"(i) to reduce the multiple trade
charges, levies and exactions charged at
present from the producer-sellers;

(ii) to provide for the verification
of accurate weights and scales and see
that the producer-seller is not denied his
legitimate due;

(iii)
to
establish
market
committees in which the agricultural
producer will have his due representation;

(iv)
to
ensure
that
the
agricultural producer has his say in the
utilisation of market funds for the
improvement of the market as a whole;

(v) to provide for fair settlement
of disputes relating to the sale of
agricultural produce;

(vi) to provide amenities to the
producer-seller in the market;

(vii)
to
arrange
for better
storage facilities;

(viii) to stop inequitable and
unauthorised charges and levies from the
producer-seller; and

(ix)
to
make
adequate
arrangements for market intelligence with
a view to posting the agricultural producer
with the latest position in respect of the
markets dealing with his produce."

11. Chapter 2 deals with "Market
Area And Market Yards" and contains
Sections 5 to 11. Section 5 confers power
upon Government whenever it is of
opinion that it is necessary or expedient in
the interest of public to regulate sale and
purchase of any agricultural produce in
any area, for that purpose it may declare
that area as a Market Area by Notification
in Gazette and after inviting objections
such Market Area can be declared by State
Government under Section 6. Once a
Market
Area
is
declared,
State
Government by Notification in Gazette
under Section 7 may declare certain
portion of Market Area as "Principal
Market Yard" and other portion as "SubMarket Yard". It can also declare that
whole-sale transactions of all or any of
specified agricultural produce, in respect
of a Market Area, shall be carried on only
at a specified place or place within
Principal Market Yard by Sub-Market
Yard. Once a market is declared as per
Section 9 of Act, 1964, no legal body or
other person shall, within the Market Area,
set up, establish or continue or allow to be
set up, established or continued any place
for the sale-purchase, storage, weighment
or processing of the specified agricultural
produce except under and in accordance
with the conditions of licence granted by
Committee concerned. This provision has
been given overriding effect over any
other law, custom or usage or agreement
providing otherwise.

12. Chapter-III deals with the
"Market Committee". Section 12 provides
that there shall be a Committee to be
called "Mandi Samiti" of every Market
Area which shall be a body corporate
having perpetual succession and an official
seal. Subject to such restrictions and/or
qualifications, if any, imposed by Act,
1964 or any other enactment, 'Mandi
Samiti' may sue or be sued in its corporate
name and acquire, hold, and dispose of
property and enter into contracts. A 'Mandi
Samiti' is deemed to be a Local Authority
for the purposes of Land Acquisition Act,
1894 (hereinafter referred to as "Act,
1894") and any other law for the time
being in force by virtue of Section 12(2) of
Act, 1964. I am not going into details of
1 All. M/S Ganesh Grain Store Vs. State of U.P. & Ors.
373
Committee, its power etc. as the same are
of no relevance to the issues raised in these
Writ Petitions.

13. Chapter-V deals with external
control of Market Area etc. Section 26-A
empowers State Government to constitute
a Board by the name of State Agricultural
Produce Markets Board with its Head
Office at Lucknow (hereinafter referred to
as "Board"). I may notice at this stage that
Definition of Board under Section 2(a-i)
states that 'Board' means the State
Agricultural
Produce
Markets
Board
constituted under Section 26-A. The
constitution of Board is provided in
Section 26-E. Director is defined in
Section 2(h) and it read as under:

"(h) "Director" means an officer
appointed by the State Government as
Director of Mandis and includes any
other Officer authorised by the Director
to perform all or any of his functions
under this Act;"

14. Director is an Ex-officio of
Secretary of Board and has been termed as
'Member Secretary' at various places in
Act, 1964.

15. The power of employment of
officers
and
servants
for
effective
functioning of Board is conferred upon
Board under Section 26-F. The Board can
also lay down terms and conditions of
Officers and Servants appointed by it but
the same have to be framed with previous
approval of State Government. However,
subject to superintendence of Board,
general control and direction over all
Officers and servants of Board is vested in
Director vide Section 26-G. Board may
delegate its powers under Act, 1964 to any
such Committee appointed by it or to
Director or Member Secretary or any other
Officer of Board by virtue of Section 26-I.

16. Power and functions of Board are
provided in Section 26-L and it reads as
under:

"26-L. Powers and functions of
the Board.-(1) The Board shall, subject to
the provisions of this Act, have the
following functions and shall have power
to do anything which may be necessary or
expedient for carrying out those functions-

(i) superintendence and control
over
the
working
of
the
Market
Committees and other affairs thereof
including programmes undertaken by such
Committees for the construction of new
Market yards and development of existing
Markets and Market areas;

(ii) giving such direction to
Committees in general or any Committee
in particular with a view to ensure
efficiency thereof;

(iii) any other function entrusted
to it by this Act;

(iv) such other functions as may
be entrusted to the Board by the State
Government by notification in the Gazette.

(2) Without prejudice to the
generality of the foregoing provision, such
power shall include the power-

(i) to approve proposals of the
new sites selected by the Committee for the
development of Markets;

(ii) to supervise and guide the
Committees in the preparation of siteplans and estimates of construction
programmes
undertaken
by
the
Committee;

(iii)
to
execute
all
works
chargeable to the Board's fund;

(iv) to maintain accounts in such
forms as may be prescribed and get the
374 INDIAN LAW REPORTS ALLAHABAD SERIES
same audited in such manner as may be
laid down in regulations of the Board;

(v) to publish annually at the
close of the year, its progress report,
balance-sheet, and statement of assets and
liabilities and send copies to each member
of the Board as well as to the Chairman of
all Market Committees;

(vi)
to
make
necessary
arrangements for propaganda publicity on
matters related to regulated marketing of
agricultural produce;

(vii) to provide facilities for the
training of officers and servants of the
Market Committees;

(viii) to prepare and adopt
budget for the ensuring year;

(ix) to make subventions and
loans to Market Committees for the
purposes of this Act on such terms and
conditions as the Board may determine;

(x) to do such other things as
may be of general interest to Market
Committees or considered necessary for
the efficient functioning of the Board as
may be specified from time to time by the
State Government."

17. Section 27 provides power and
duties of Director and reads as under:

"27. Powers and duties of the
Director.- (1) Subject to the provisions of
this Act, the general superintendence,
direction and control over the Committee
and its Chairman, Vice-Chairman and
other members, its Secretary and other
officers referred to in sub-section (2) of
Section 23, shall be vested in the Board.

(2) The Board or the Director
may inspect, or cause to be inspected, all
documents or records relating to the
affairs of the Committee and, require the
Committee, its Chairman, Vice-Chairman,
members, officers or servants to furnish
such information or material as he may
consider necessary.

(3) On receipt of a complaint in
respect of an act relating to the affairs of
the Committee, the State Government may
require the Director to conduct enquiry or
institute
proceeding
against
the
Committee, its Chairman, Vice-Chairman,
member or officer, and the Director shall
act accordingly.

(4) The Director shall, for the
purpose of holding any enquiry under this
Act, have the same powers as are vested in
a Civil Court under the Code of Civil
Procedure, 1908, when trying a suit, in
respect of the following matters, namely-

(a) summoning and enforcing the
attendance of any person and examining
him on oath;

(b) requiring the discovery and
production of documents; and

(c) any other matters which may
be prescribed."

18. Power to entertain Revision has
been conferred upon Board against an
order or proceedings of a Committee under
Section 32 and it reads as under:

"32. Powers of the Board to call
for the proceedings of a Committee and
pass orders thereon.- The Board may, for
the purpose of satisfying itself as to the
legality or propriety of any decision of, or
order passed by, a Committee, at any time
call and examine the proceedings of the
Committee, and, where it is of the opinion
that the decision or order of the
Committee should be modified, annulled
or reversed, pass such orders thereon as it
may deem fit."

19. Section 33 talks of development
of power and reads as under:
1 All. M/S Ganesh Grain Store Vs. State of U.P. & Ors.
375

"33. Delegation of powers.-The
Board may, by regulations, delegate
subject
to
such
conditions
and
restrictions and in such manner, as may
be specified therein, any of its powers to
the Director." (emphasis added)

20. Power of framing Rules have
been conferred upon State Government by
virtue of Section 40 of Act, 1964. In
exercise of power under Section 40 of Act,
1964 State Government has framed Rules,
1965.

21. Procedure for filing Revision is
dealt with by Rule 133-A of Rules, 1965
and it reads as under:

"133-A. Revision under the Act
(Section 32).-(1) A fee of Rupees Ten in
cash
shall
be
deposited
with
the
Committee for every revision to be filed
under the Act and a receipt therefor shall
be obtained from the Committee.

(2) No revision under the Act
shall
be
entertained
unless
it
is
accompanied by a receipt duly granted by
the Committee for the payment of the
amount of fee as referred to in sub-rule
(1).

(3) Subject to the provisions of
sub-rule (2), on receipt of a revision under
Section 32 of the Act, the Board or the
Officer nominated by it shall after
examining the case and affording the
person
concerned
a
reasonable
opportunity of being heard in person,
dispose of the revision within 60 days from
the date of filing of the revision. The
Board or the officer nominated by it shall
during the hearing of the revision also
consider the propriety of the order passed
by the Committee on the basis of merit and
demerit thereof and pass the suitable
order. The order passed by the Board or
the officer nominated by it shall be final
and binding." (emphasis added)

22. Rule 135 of Rules, 1965 talks of
power of Director in certain cases with
reference to Section 27 read with Section
40(2) (xxx) and it reads as under:

"135. Power of the Director in
certain
cases
[Sections
27
and
40(2)(xxx)].- Without prejudice to the
provisions of the Act, and these rules, the
Director, may-

(i) cause periodical inspection of
the affairs of the Committee to be carried
out by any Officer Authorised by him in
this behalf;

(ii) order, on receipt of a report
or complaint or on his own motion, for
special audit of the accounts of the
Committee at the cost of the Committee;

(iii)
direct
the
Committee,
Chairman,
Vice-Chairman,
or
any
Member, Officer or Servant of the
Committee to undertake such measures as
he may consider necessary, for the
improvement and development of the
Market Area, Principal Market Yard and
Sub-Market Yards;

(iv) exercise such powers and
pass such orders as he may deem
necessary for proper functioning of and
effective superintendence and control over
the Committee and the Chairman, ViceChairman,
Members,
Officers
and
Servants of the Committee under the Act:

Provided
that
such
powers
superintendence and control in so far as
they relate to the Officers and Servants
appointed by the Committee under subsection (1) of Section 23 of the Act, shall
be exercised through, the Chairman of the
Committee.

(v) inspect or cause to be
inspected any premises, vehicles or stocks
376 INDIAN LAW REPORTS ALLAHABAD SERIES
for the purpose of holding any inquiry
under sub-section (4) of Section 27 of the
Act."

23. It is no doubt true that a well
settled principle in law is, 'delegatus non
potest delegare'. A delegate has no power
to delegate. The principle, however, has a
different field of operation in the context
of
legislative
powers
vis-a-vis
nonlegislative/administrative powers. It is well
settled that delegation of power to legislate
cannot be sub-delegated. In other words,
Legislature
cannot
delegate
essential
legislative functions which consists of
determination
or
choosing
of
the
legislative policy and formally enacting
that policy into a binding rule of conduct.
Subordinate legislation, however, is in the
realm of Rules and Regulations dealing
with the procedure on implementation of
plenary legislation and generally a task
entrusted to a specified authority. Principal
Legislature is not supposed to spend its
time
for
working
out
details
on
implementation of law. It can entrust such
task to an agency and to this extent subdelegation is permissible but such agency
cannot further entrust such task to its
subordinates. It would be a breach of
confidence reposed on delegate. With
regard
to
delegation
of
nonlegislative/administrative powers on a
person or a body to do certain things,
whether delegatee himself is to perform
such functions or whether after taking
decision as per the terms of the delegation,
the
said
agency
can
authorize
the
implementation of the same on somebody
else, depends upon the Statute concerned.
Once power is conferred, after exercising
power of taking decision as per the Policy
etc., the question how to implement the
decision taken in the process, is a matter of
procedure. The Legislature may, after
laying down legislative policy, confer
discretion on an administrative agency
with regard to execution of policy. It can
leave this task to agency to work out the
details within the framework of that
policy. So long as essential functions of
decision making is performed by the
delegate, the burden of performing the
ancillary and clerical task need not be
shouldered by the primary delegate. It is
not necessary that primary delegate
himself should perform ministerial acts as
well. Implementation of decision already
taken by primary delegate as per the
delegation, ministerial or clerical tasks can
be performed by authorized officers.
Practical necessities or exigencies of
administration require that the decision
making authority who has been conferred
with statutory power, be able to delegate
tasks when the situation so requires. Thus,
the
maxim
"delegatus
non
potest
delegare", gives way in the performance of
administrative or ministerial tasks by
subordinate authorities in furtherance of
the exercise of delegated power by an
authority.

24. In Barium Chemicals Limited
and another Vs. The Co. Law Board
and another AIR 1967 SC 295 Court
said:

"... the maxim delegatus non
potest delegare must not be pushed too
far. The maxim does not embody a rule of
law. It indicates a rule of construction of
a statute or other instrument conferring
an authority. Prima facie, a discretion
conferred by a statute on any authority is
intended to be exercised by that authority
and by no other. But the intention may be
negatived by any contrary indications in
the language, scope or object of the
statute. The construction that would best
1 All. M/S Ganesh Grain Store Vs. State of U.P. & Ors.
377
achieve the purpose and object of the
statute should be adopted." (emphasis
added)

25.

In
Gwalior
Rayon
Silk
Manufacturing (Wvg.) Co. Ltd. Vs. The
Assistant Commissioner of Sales Tax
and others (1974) 4 SCC 98, a
Constitution Bench held that essential
legislative
functions
consist
in
the
determination
or
choosing
of
the
legislative policy and it is formally has a
binding rule of conduct, cannot be
delegated by Legislature, nor is there any
unlimited right of delegation inherent in
the legislative power itself. The legislature
must retain in its own hands the essential
legislative functions and what can be
delegated is the task of subordinate
legislation necessary for implementing the
purposes and objects of the Act. Where the
law
passed
by
Legislature
declares
legislative policy and lays down the
standard which is enacted into a rule of
law, it can leave the task of subordinate
legislation
like
making
of
rules,
regulations or bye-laws which by its very
nature is ancillary to the statute, to
subordinate bodies.

26. In Director General, E.S.I. and
another Vs. T. Abdul Razak, etc. (1996)
4 SCC 708, Court held that statutory
power must be exercised only by body or
officer in whom it has been confided
unless
sub-delegation
of
power
is
authorised by express words or necessary
implication.

27. This Court has also followed
authorities
in
Gwalior
Rayon
Silk
Manufacturing (Wvg.) Co. Ltd. Vs. The
Assistant Commissioner of Sales Tax
and
others
(supra)
and
Director
General, E.S.I. and another Vs. T.
Abdul
Razak,
etc.
(supra)
in
its
judgment in Writ Petition (Writ-A) No.
786 of 1995 (Ravinder Kumar Pal and
others Vs. Nideshak, Karmchari Rajya
Beema Sharam Chikitsalay and others)
decided on 18.12.2013, para 5 and 6
whereof read as under:

"5. However, I find no force in
the submission. It is well settled legal
principle
in
constitutional
and
administrative law that 'delegatus non
potest delegare, ''one to whom power is
delegated cannot himself further delegate
that power' (See: Gwalior Rayon Silk
Mfg.
(Wvg.)
Co.
Vs.
The
Asstt.
Commissioner of Sales 1974 AIR 1660).

6. Following the above principle,
Apex Court in Director General, E.S.I.
and another Vs. T . Abdul Razak AIR
1996 SC 2292 has held as under:

"The law is well settled that in
accordance with the maxim delegatus non
potest delegare, a statutory power must be
exercised only by the body or officer in
whom it has been confided..."

28. In Jamal Uddin Ahmad Vs.
Abu Saleh Najmuddin and another
(2003) 4 SCC 257, scope of delegation in
the matter of judicial functions of Court
was examined. Court held:

"13. The functions discharged by a
High Court can be divided broadly into
judicial and administrative functions. The
judicial functions are to be discharged
essentially by the Judges as per the Rules
of the Court and cannot be delegated.
However, administrative functions need
not necessarily be discharged by the
Judges
by
themselves,
whether
individually or collectively or in a group
of two or more, and may be delegated or
entrusted by authorization to subordinates
378 INDIAN LAW REPORTS ALLAHABAD SERIES
unless there be some rule of law
restraining
such
delegation
or
authorisation. Every High Court consists
of some administrative and ministerial
staff which is as much a part of the High
Court as an institution and is meant to be
entrusted
with
the
responsibility
of
discharging administrative and ministerial
functions. There can be "delegation" as
also there can be "authorization" in favour
of the Registry and the officials therein by
empowering or entrusting them with
authority or by permitting a few things to
be done by them for and on behalf of the
Court so as to aid the Judges in discharge
of their judicial functioning. Authorization
may take the form of formal conferral or
sanction or may be by way of approval or
countenance.
Such
delegation
or
authorization is not a matter of mere
convenience but a necessity at times. The
Judges are already overburdened with the
task of performing judicial functions and
the constraints on their time and energy
are so demanding that it is in public
interest to allow them to devote time and
energy as much as possible in discharging
their judicial functions, relieving them of
the need for diverting their limited
resources of time and energy to such
administrative or ministerial functions,
which, on any principle of propriety, logic,
or necessity are not required necessarily
to be performed by the Judges. Receiving a
cause or a document and making it
presentable to a Judge for the purpose of
hearing or trial and many a functions
post-decision,
which
functions
are
administrative and ministerial in nature,
can be and are generally entrusted or
made over to be discharged by the staff of
the High Court, often by making a
provision in the Rules or under the orders
of the Chief Justice or by issuing practice
directions, and at times, in the absence of
rules, by sheer practice. The practice
gathers the strength of law and the older
the practice the greater is the strength. ..."

29. In NGEF Ltd . Vs . Chandra
Developers Pvt . Ltd . and others (2005)
8 SCC 219, Court has observed that BIFR
being a statutory authority, in absence of
any provision empowering it to delegate
its power in favour of any other authority,
had no jurisdiction to do so. 'Delegatus
non potest delegare' is a well-known
maxim which means unless expressly
authorized a delegate cannot sub-delegate
its power.

30. Referring to some of the above
authorities, same proposition of law has
been followed in Sidhartha Sarawgi Vs.
Board of Trustees for the Port of
Kolkata and others (2014) 16 SCC 248
and Union of India Vs. B.V. Gopinath
and others (2014) 1 SCC 351.

31. Now we will examine the issues
raised before this Court in the present case
in the light of above exposition of law.

32. The definition of 'Director'
includes any other Officer authorized by
Director to perform all or any of his
functions under Act, 1964.

33. Section 32 of Act, 1964 confers
power of Revision upon Board. Section 33
which was substituted by U.P. Act No. 10
of 1991 with effect from 01.09.1990
provides
that
the
Board
may,
by
Regulations, delegate, subject to such
conditions and restrictions and in such
manner, as may be specified therein, any
of its power to 'Director'. Petitioners in
these Writ Petitions have not disputed that
power of Revision is delegated to Director
and
Revisions
were
preferred
by
1 All. M/S Ganesh Grain Store Vs. State of U.P. & Ors.
379
petitioners to Director. Revisions preferred
to 'Director' were transferred to Deputy
Director
with
reference
to
Board's
resolution
dated
12.12.1994
and
19.01.1998 and order dated 13.08.1999
and delegation of power by Director to
Deputy Director, Varanasi communicated
to him vide letter dated 14.09.2007.

34. The submission is that 'Director'
exercised power delegated to it by Board
under Section 33 and it is not Director's
any of his functions under Act, 1964 and,
therefore, Section 2(h) which defines
"Director" will not include within its ambit
Deputy Director, Varanasi who has
decided the Revision in question. I find
that almost similar question has been
considered by Supreme Court in Heinz
India Pvt. Ltd. and others Vs. State of
U.P. and others (2012) 5 SCC 443
wherein also Revision was decided by an
Officer authorized by Director and Court
said as under:

"33. .... It is manifest from a
plain reading of the above that the
expression 'Director' wherever used in
the Act including Section 33 thereof
includes an officer authorised by the
Director to perform all or any of his
functions under the Act. Significantly
enough neither before the High Court nor
before us was it contended that the officer
who had handled and disposed of the
revision petitions filed by the dealers, was
not duly authorised in terms of Section
2(h) or that the power of the Board under
Section 32 of the Act was not duly
delegated to the Director. It is not,
therefore, a case of inherent lack of
jurisdiction.
All
that
the
Appellants
propose is that the revisions could either
be heard by the Board itself or made over
for disposal to a Committee of officers
senior enough to decide issues of fact and
law involving substantial financial stakes
of the parties.

34. Now it is true that the stakes
involved in the present batch of cases are
substantial and those called upon to
satisfy the demands raised against them
would like their cases to be heard by a
senior officer or a Committee of officers to
be nominated by the Board. But in the
absence of any data as to the number of
cases
that
arise
for
consideration
involving a challenge to the demands
raised by the Market Committee and the
nature of the disputes that generally fall
for determination in such cases, it will not
be possible for this Court to step in and
direct an alteration in the mechanism that
is currently in place. The power to decide
the revisions vests with the Board who
also enjoys the power to delegate that
function to the Director. So long as there
is statutory sanction for the Director to
exercise the revisional power vested in the
Board, any argument that such a
delegation is either impermissible or does
not serve the purpose of providing a
suitable machinery for adjudication of
the disputes shall have to be rejected.

35. It is noteworthy that Rule
133-A of the Rules framed under the Act
regulates the filing and disposal of the
revision petitions under Section 32 thereof.
This provision was inserted with effect
from 11th May, 2008 and empowers the
Board either to decide the revision
petition itself or to nominate an officer
for doing so. It also provides for grant of
an opportunity of being heard to the
person concerned and a time bound
disposal of the revision. Rule 133-A is,
therefore, a step in the direction of
providing a machinery under the Act for
adjudication of disputes that may arise
between dealers on the one hand and the
380 INDIAN LAW REPORTS ALLAHABAD SERIES
market committee on the other. That
being so, the Act is not completely bereft
of a machinery nor can it be said that the
observations made by this Court in Ram
Chandra Kailash Kumar's case (supra)
have gone unheeded. All that we need to
add is that in order to make the Board's
revisional power more effective and its
exercise more transparent and credible,
the Board would do well to delegate the
power of hearing and disposal of the
revision
petitions
to
a
senior
and
experienced officer who is well-versed in
dealing with legal issues concerning
assessment and/or determination of the
liability under the Act. Beyond that it is
neither necessary nor proper for us to say
anything. Question No. 1 is answered
accordingly." (emphasis added)

35. The power of Revision when
delegated to Director by virtue of Section
33 becomes a function to be performed by
Director under Act, 1964 and, therefore,
Director can authorize any other Officer to
perform all or any of his functions under
Act, 1964 which includes delegated
powers to be performed by Director under
Section 32 of Act, 1964. In view thereof I
find myself unable to accept the contention
of learned counsel for petitioners that
power exercised by Deputy Director in
deciding Revision is bad in law as he had
no jurisdiction to decide Revision and
Director had no power to authorize Deputy
Director to decide Revision.

36. The issues, formulated above, are
answered against petitioners.

37. Since this Court has not been
addressed on merits of issue as to whether
demand raised from petitioners was valid
or not, hence, I have not gone into that
issue at all.

38. No other point has been argued.

39. The writ petitions lack merit.
Dismissed.

40. Interim order, if any, stands
vacated.
----------
(2020)1ILR 380

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.01.2020

BEFORE
THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 34797 of 2019

Lalita Devi & Ors. ...Petitioners
Versus
Board of Revenue U.P., Lucknow & Ors.
 ...Respondents

Counsel for the Petitioners:
Indrajeet Shukla, P.K. Shukla

Counsel for the Respondents:
C.S.C., Mohd. Waris Farooqui

A. Challenging-impugned order-passed
illegally-without notice on prescribed
date-without
informing
petitionernormally writ jurisdiction not exercised in
matters
arising
out
of
mutation
proceedings- in the case-if not-would
amount to restoring illegal order.

B. When two remedies available no
prohibition
is
pursuing
both
simultaneously-aggrieved
person
can
choose either one or both remedies.

C. Held, This Court is aware that normally
extra ordinary writ jurisdiction is not
exercised in matters arising out of
mutation
proceedings.
In
this
case,
however, the order passed by the Board
of Revenue, if not, interfered with by this
Court in equity jurisdiction would amount