# ' • - ARNOLD RODRICKS & ANR v. STATE OF MAHARASHTRA & ORS

- **Citation:** [1966] 3 S.C.R. 885
- **Court:** Supreme Court of India
- **Decided:** 1966-03-14
- **Case number:** Writ Petitions Nos. 66 and 146 of 1965
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/arnold-rodricks-anr-v-state-of-maharashtra-ors-3778
- **Pages:** 34

## Headnote

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ARNOLD RODRICKS & ANR.
v.
STATE OF MAHARASHTRA & ORS.
March 14, 1966.
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[P. B. GAJENDRAOADKAR, C.J., K. N. WANCHOO, M. HIDAYAc
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TULLAH, J.C. SHAH ANDS. M. SIKRI, JJ.J
The Commissioners of Divislons Act, 1957 (Bom. Act 8 of 1958),
u. 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 A.ct 35 of 1953-Amended definition of 'public purposl'
whether valid.
The oftice of Commissioner was abolished in Bombay State in 1950
but it was revived in 1958 by the Commiosioners of Division Act passed
by the Bombay Legislature. The Schedule to the Act amended various
enactments for the pnrpose of conferring powers on Commissioners ther•
under. 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
diacharge 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 dnties 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 acquis'tion pr().
ceeding in respect of certain lands owned by the appellants, the alleged
purpose of the acquisition being "development and utilisation of the sa'd
lands as an industrial and residential area".
The petitioner filed
writ
peftions 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 amendeJ by the
Bombay Legislature by introducing s. 3(f)(2) in the Land Acquisition Ad
was ultra vires.
HELD: Per Gajendragadkar, C.J., Hidayatullah and Sikri, JJ.-(1)
The object of s. 3(3) of the Commissioners Act is two fold; first to enable
the Government to impose any conditions or restr"ctions 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 Commi5'ioners
Act is to enable it to run the administration as smoothly as possible. The law
which the Commissioners or the State Government or the other author'ties
have to administer remain& the same; it is only the authority that is changed.
[897 E..OJ
<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
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( 1966) 3 S.C.R.
indicate the kinds of powers which may be conferred on the Commiuioner.
Further the very nature of the office held by the Commissioner and 1ho
duties performed by him up to 1950 would show that it is only tho dutieo
Of the Slate Government and of officers of equivalent rank discharging
revenue and executive duties which would be conferred on the Commislli<>neT.
Thero can be no difference in principle between the Slate Lep
lature insening a section in an Act enabling the Stale Government to
delegate its power to another authority and the Legislature in viow of the
change in tho administrative set-up conferring power on the State Oovomment 10 confer not only ill! own duties on Commissionera but also of other
officers performing executive and revenue duties. [895 C-B]

## Text

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ARNOLD RODRICKS & ANR.
v.
STATE OF MAHARASHTRA & ORS.
March 14, 1966.
B
[P. B. GAJENDRAOADKAR, C.J., K. N. WANCHOO, M. HIDAYAc
D
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J
G
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TULLAH, J.C. SHAH ANDS. M. SIKRI, JJ.J
The Commissioners of Divislons Act, 1957 (Bom. Act 8 of 1958),
u. 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 A.ct 35 of 1953-Amended definition of 'public purposl'
whether valid.
The oftice of Commissioner was abolished in Bombay State in 1950
but it was revived in 1958 by the Commiosioners of Division Act passed
by the Bombay Legislature. The Schedule to the Act amended various
enactments for the pnrpose of conferring powers on Commissioners ther•
under. 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
diacharge 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 dnties 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 acquis'tion pr().
ceeding in respect of certain lands owned by the appellants, the alleged
purpose of the acquisition being "development and utilisation of the sa'd
lands as an industrial and residential area".
The petitioner filed
writ
peftions 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 amendeJ by the
Bombay Legislature by introducing s. 3(f)(2) in the Land Acquisition Ad
was ultra vires.
HELD: Per Gajendragadkar, C.J., Hidayatullah and Sikri, JJ.-(1)
The object of s. 3(3) of the Commissioners Act is two fold; first to enable
the Government to impose any conditions or restr"ctions 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 Commi5'ioners
Act is to enable it to run the administration as smoothly as possible. The law
which the Commissioners or the State Government or the other author'ties
have to administer remain& the same; it is only the authority that is changed.
[897 E..OJ
<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
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SUP.11.ElrU!
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REP-Oii.TS
( 1966) 3 S.C.R.
indicate the kinds of powers which may be conferred on the Commiuioner.
Further the very nature of the office held by the Commissioner and 1ho
duties performed by him up to 1950 would show that it is only tho dutieo
Of the Slate Government and of officers of equivalent rank discharging
revenue and executive duties which would be conferred on the Commislli<>neT.
Thero can be no difference in principle between the Slate Lep
lature insening a section in an Act enabling the Stale Government to
delegate its power to another authority and the Legislature in viow of the
change in tho administrative set-up conferring power on the State Oovomment 10 confer not only ill! own duties on Commissionera but also of other
officers performing executive and revenue duties. [895 C-B]
(ill) The State Legislature cannot be said to have abdicated its powers
in favour of the executi\"e 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 Divis:ons. The State Government is after all in charge of the administration and it knows specially
in view of its previous experience what pov•ers of existing authoruics including itself can suitably be c0nferrcd on the Commissioners. [897 G898AJ
(iv) It was not necessary to get the Prelident's assent for the nolilication amending the Land Acquisition Act bccal>Se the amendment of the
Act became effective by virtue of the Commissioners Act which had
received the IWelll of the President, and not by virtue of tho noliftcation. (898 CJ
(v) 11 was not nec..,.ary to decide the question as 10 the validity of
•. (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 purpooe' as defined in the Land Acquisition Act
u it stood before the amendment made by the Bombay Legislature, lllld it
w .. not necessary for the respondents 10 rely on the amendment to susta'n
in the notification.
Public purpose varies with the time and the prevailiag
conditions in towns like Bombay are such that it ~ imperative that th<
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 EJ
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(\i) There is no law which requires a scheme lo be l'repared before
issuing notificafons under ss. 4 and 6 of the Land Acqui•it1on Act. [Duirability of preparing such a scheme before disposal of sites sugge.ted].
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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 Consutution and could not
be stmclt down as u/1ra vire6. (911 BJ
(ii) By enacting s. 3(3) of the Com.misaioners Act the State Legislature
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in effect says that though it ooosiders that the Commissioner should ba\"e
certain powers it bas conferred on him in the Schedule, the State Government may withdraw those powers.
This is not a provision for delegated
legislat:on but a transfer by the Legislature of its own power to make law
to the executive. Further. if it can be considered to he conferment of
power of delegated legi•lation it suffers from the vice of exc..,.ive delegation inasmuch as ii g;,-es a power to the executive to the extent of repealing
a part of the law made by the lcgislaluro [912 G-913 BJ
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(iii) The language of s. 3(4) is of the widest amplitude and gives
blanket power to the Stale Government to amend any enactment which
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RODRICKS v. MAHARASHTRA (Sikri, /.)
887
may be in force for the time being in the State by making nec""8ary entrieo
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 comple!e
transfer of its power of legislation by the legislature in this matter to the
State Governmen1.
Sub-s. (4) was therefore ultra vires and sub-s. (5)
which is cons"'!uential on it must fall with it. (913 C-D, H; 915 H-9168]
(iv) As the proceedings under the Land Acquisition Act were taken by
the Commissioner by powers derived from a notification under s. 3 ( 4) of
the Commissioners Act which is ultra vires the said proceedings must be·
quashed. (918 A]
Case law referred to.
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-Genera/, Malcolm Pereira, B. R.
Agarwala, G. L. Sanghi and H. K. Puri, for the petitioners (in both
the petit~ons).
M. C. Setalvad, N. S. Bindra and B. R. G. K. Achar, for the
respondents (in both the petitfons).
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 Constitution 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 (I 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
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(1966] 3 S.C.R.
and utilisation of the said lands as an industrial and residential area".
By the said notification the third respondent was appointed to perform the ~unctions of the Collector under s. 5-A of the Act in respect
of the said lands. Pursuant to the said notification the third respondent issued a notification under s. 4( 1) of the Act calling upon the
petitioners to file their objections to the acquisition or 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
Jetter dated October 5, I 963,
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, els. (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,
I 963, and the acquisition proceedings and the enquiries
purpo~ed
to be held under s. 5A and s. 11 of the Act arc 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 n~sary
to mention that the Bombay Legislature amended the dcfimllo_n. of
the expression "public purpose" ins. 3 of the Act, and the dcfimtton
'in the Act as amended by the Bombay Legislature reads as fol·
;lows :-
"(0 the expression "Public purpose" includes
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RODRICKS v. MAHARASHTRA (Sikri, J.)
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(I) 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)oftheBombay Commissioners of Divisions Act, 19S7 (Bombay Act 8 of 19S8)-which for the sake of brevity will be referred
to as the Commissioners Act. The notification had amended ss.
3A, 4, SA, 6, 7 and 17 of the Act as follows :
"!. 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 SA, in sub-section (2) after the words "appropriate Government", where they occur at two pla=
the words "or, as the case may be, of the Commissioner"
iihall 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 be inserted;
M12iup. Cl/66-14
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[1966] 3 S.C.R.
,·h) 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 thi, behalf" the
words "or, as the case may be, the Commissioner"
shall be inserted,
6. In section 17 -
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(i) in sub-section (I), after the words "appropriate
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Government" the words "or the Commissioner"
shall be i nsertcd.
(ii) in sub-section (2)
(u) after the words "the State Government" the
words "or the Commissioner" shall
be
inserted;
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lb) 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 be)lalf of the petitioners, raised four points before us,
(I) That the declarations under s.~.
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
Coastitution, and the assent not having been obtained, the notification is bad.
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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 Com-.
missioners Act reads as follows :
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(1966] 3 S.C.R.
"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 notices. 6A
inserted by the Schedule. Section 6A is as follows :
"6. (I) 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,
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for the purpose only of carryimg 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 tile
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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,
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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
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RODRICKS v. MAilA&ASHTllA (Sikri, /.)
No. 25398/B, dated 1st November, 1956, issued under
section 122 of the States Reorganisation Act, 1956,
(iii) 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.
893'
"Existing law" is defined as "any enactment of a Legislature or
other competent authority in relation to matters specified in List&
II 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 mayj,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
SUPRl!ME COURT llEPORTS
[1966] 3 S.C.R.
(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. l11e Bombay
Commissioners (Abolition of Office) Act, 1950 (Born. Act 28
of 1950) had abolished the office of the Commissioner and further
provided that wherever a reference was to the Commissioner, the
rcCerencc should be read as a reference to the State Government or
te 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.
S.
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
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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 Jaw."
895
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 Commissioners. 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 enablmg 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
Bag/a v. The State of Madhya Pradesh(!). 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 ~ttacked on the ground that
it empowers the Central Government to delegate its own
(I) [1955] l S.C.R. 380 at pp. 389·390.
896
SUPRBMB COUllT llBPOllTS
[1966) 3 S.C.R.
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 connection was made to two decisions of the Supreme Court
of the United States of America-Panama Refining Co. v.
Ryan(') 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(') 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 socalled 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
whlch 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
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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." "
89T
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; (I) 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 II and III,
it would have been difficult to distinguish the decision in Bagla's(I)
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 <::ommissioners,
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 Govern:
ment 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•.
(l) [1955] l S.C.R. 380.
898
SL'PREME COURT REPORTS
[1966] 3 S.C.R.
·of existing authorities including itself can suitably be conferred on
A
the Commissioners.
We may mention that the Bomb y High
·Court has in two decisions (Ganesh Varaya11 v. Commissioner Nagpur
Division, Nagpur(') and Sadruddin
Suleman
Jha1•cri v.
J. II.
Patwardhan(2) upheld the validity of the Commissioners Act.
·-.
This takes us to the fourth point, namely, >l'hether the assent
·of the Prt!Sident 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 Harisha11ker Bag/a and Another v.
The Stat<' of Madhya Pradt>.th(l) and repelled a similar contention
,in the following words:
"Conceding, however, for the sake of argument that
lo the extent of a repugnancy between an order made under
·section 3 and the provisions of an existing law, t,o the
extent of the repugnancy, the existing law stands repealed
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 hut the Legislature
itself has declared its will that way in section 6. The
abrogation or the implied repeal is by force of the legislative 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 iL~ 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 therewith 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-
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(I) [1964} 66 D.L.R. 807.
(2) l.L.R. [1965j Bom. 394.
(3) [t955] t S.C.R. 380 at p. 392.
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899
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ming and not laying down that it is possible to obtain the assent of
the President under the Constitution to the issue of a notification.
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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 196S) in which Mr. Pereira hasraised some additional points. He raised three points before us; (1) that no hearing
was given to the petitioner under s. SA of the Act; (2) that the declaration under s. 6 is a colourable exercise of power and(3) thats. 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. SA.
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(') 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.