# BEJOY J,AKSHMI COTION MILLS LTD v. STATE OF WF.ST BENGAL AND ORS

- **Citation:** [1967] 2 S.C.R. 406
- **Court:** Supreme Court of India
- **Decided:** 1967-01-18
- **Case number:** Civil Appeals Nos. 216 and 217 of 1964
- **Bench:** K. Subba Rao, J. C. Shah, S. M. Sjkri, V. Ramaswami, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bejoy-j-akshmi-cotion-mills-ltd-v-state-of-wf-st-bengal-and-ors-3981
- **Pages:** 17

## Headnote

Constitution of India, Art. 166(2) cu1d (3)-Authen1ica1io11 oc:cordin.i.:
to Rules made by Governor-Whether conclusive of the Go\•ernor having
acted in accordance with law.
A
B
We.st Bengal Land Developnren1 and P/anniflg Act, 1948---.Voti{u:ation
under s. 4 and declaration under s. 6--Whether required to be nwde 01z
c
Governor's personal satis/action-Minist.t•r making Standing Order under
the Rules of Business made by Governor llnder
Art. 166(3)-.Wlrelher
proceeding under the Act covered by the
Standing
Order-Therefore
whether required to be dealt with by Minister.
1be Slate Gove.rnment i""ued a notification in February 1955 under
s. 4 of the West Bengal Land Development and Planning Act, 1948, to
the effect that certain lands, a major portion of which belonged to the
D
appellant. wete likely 10 be needed for a public purpose.
This 11Dlifical1on
waa signed by the Assistant Secretary in the Land and Revenue Depart·
ment of the State Government.
A development scheme was then. prepared and after objections to it had been invited and disposed of, rhe
Land Planning Committee which is the pre.<cribed authority under 1he
Act. n:oommended acceptance of the scheme and the issue of a declaration
under s. 6 of the Act.
This declaration was issued by the Govemmonl
in July 1956 and was signed by the Deputy Secretary in the same DrpartE
me-at.
The appellant filed a writ petition under Art. 226 of the C'A.)nstitulion
praying.that the notification under s. 4 and the declaration under :-;. 6 be
quashed. It was contended hy him that the entire proceedings ""'ere \'oitl
for the reasons, inter alia, (i) that the notification, the declaration, and the
sanctioning of the scheme for the notified area were all done by the Assistant or Deputy Secret~ry and the State Government could not be said to
F
have applied its mind in the proceedings; inasmuch as the executive power
of the State is vested in the Governor ur.der An. 154(1) of the Conslilution, it is satisfaction of the Governor that is contemplated ut"lder ss. 4 and
6 of the Act; (ii) that under the Rules of Business made by the Governor
under Art. 166(3), the Ministcr-in-<:harge had issued a Slanding Order
on NO\"elllber 29, 1959 specifying matters which were required to ho
referred to him: as the proceedings taken under the ATtic1e fe11 within
cenain Items of that Standing Order, they could only be deall with hy the
G
Minister himself and were in fact not so dealt with.
On the other hand, it was contended on behalf of the Slale (i) !hat
as tho notification and tho declaration were authenticated according to
the Rules made by the Governor under Art. 166(2) and "' they al"°
contained a recital that the Govemor was of the opinion tho lands were
needed for a public purpose, thus showing that the Governor's satisfaction
was made out, it was not open to the appellant to go behind and question
H
their validitv; and (ii) that the oroccedings taken in the case did not fail
under any of the -items in the Standing Order and did not therefore require to be brought to the notice of the Minister before is.~ue of orders.
A
B
c
D
E
F
BEJOY COTTON MILLS V, W. BENGAL
407
The Single Bench that heard the petition, while rejecting the other
contentions of the appellant, held that the proceedings taken under the
Act fell withm item 18 of the Standing Order which covered all cases
proposed to be taken up by the Land Planning Committee and Item 29
relating to cases under the Land Acquisition Act; they should therefore
have been referred to the Minis~er; as this had admittedly not been done,
the entire proceedings were illegal and void.
However, ~ Division ~each,
in appeal, took the view that while item 29 of the Standmg Order did not
apply at all, under.item 18 it was only necessary that the proceedmgs after
the issue of the notification under s. 4 should be dealt with by the Minister.
It therefore upheld that notification but set aside all the subsequent proceedings.
In appeal before this Court the only ~uestion fo

## Text

_Characters 0–39,824 of 45,070. This is a partial read: ask again with offset=39824 for what follows._

406
BEJOY J,AKSHMI COTION MILLS LTD.
v.
STATE OF WF.ST BENGAL AND ORS.
January 18, 1967
[K. SUBBA RAO, C.J., J. C. SHAH, S. M. SJKRI,
V. RAMASWAMI AND C. A. VAIDIALINGAM, JJ.j
Constitution of India, Art. 166(2) cu1d (3)-Authen1ica1io11 oc:cordin.i.:
to Rules made by Governor-Whether conclusive of the Go\•ernor having
acted in accordance with law.
A
B
We.st Bengal Land Developnren1 and P/anniflg Act, 1948---.Voti{u:ation
under s. 4 and declaration under s. 6--Whether required to be nwde 01z
c
Governor's personal satis/action-Minist.t•r making Standing Order under
the Rules of Business made by Governor llnder
Art. 166(3)-.Wlrelher
proceeding under the Act covered by the
Standing
Order-Therefore
whether required to be dealt with by Minister.
1be Slate Gove.rnment i""ued a notification in February 1955 under
s. 4 of the West Bengal Land Development and Planning Act, 1948, to
the effect that certain lands, a major portion of which belonged to the
D
appellant. wete likely 10 be needed for a public purpose.
This 11Dlifical1on
waa signed by the Assistant Secretary in the Land and Revenue Depart·
ment of the State Government.
A development scheme was then. prepared and after objections to it had been invited and disposed of, rhe
Land Planning Committee which is the pre.<cribed authority under 1he
Act. n:oommended acceptance of the scheme and the issue of a declaration
under s. 6 of the Act.
This declaration was issued by the Govemmonl
in July 1956 and was signed by the Deputy Secretary in the same DrpartE
me-at.
The appellant filed a writ petition under Art. 226 of the C'A.)nstitulion
praying.that the notification under s. 4 and the declaration under :-;. 6 be
quashed. It was contended hy him that the entire proceedings ""'ere \'oitl
for the reasons, inter alia, (i) that the notification, the declaration, and the
sanctioning of the scheme for the notified area were all done by the Assistant or Deputy Secret~ry and the State Government could not be said to
F
have applied its mind in the proceedings; inasmuch as the executive power
of the State is vested in the Governor ur.der An. 154(1) of the Conslilution, it is satisfaction of the Governor that is contemplated ut"lder ss. 4 and
6 of the Act; (ii) that under the Rules of Business made by the Governor
under Art. 166(3), the Ministcr-in-<:harge had issued a Slanding Order
on NO\"elllber 29, 1959 specifying matters which were required to ho
referred to him: as the proceedings taken under the ATtic1e fe11 within
cenain Items of that Standing Order, they could only be deall with hy the
G
Minister himself and were in fact not so dealt with.
On the other hand, it was contended on behalf of the Slale (i) !hat
as tho notification and tho declaration were authenticated according to
the Rules made by the Governor under Art. 166(2) and "' they al"°
contained a recital that the Govemor was of the opinion tho lands were
needed for a public purpose, thus showing that the Governor's satisfaction
was made out, it was not open to the appellant to go behind and question
H
their validitv; and (ii) that the oroccedings taken in the case did not fail
under any of the -items in the Standing Order and did not therefore require to be brought to the notice of the Minister before is.~ue of orders.
A
B
c
D
E
F
BEJOY COTTON MILLS V, W. BENGAL
407
The Single Bench that heard the petition, while rejecting the other
contentions of the appellant, held that the proceedings taken under the
Act fell withm item 18 of the Standing Order which covered all cases
proposed to be taken up by the Land Planning Committee and Item 29
relating to cases under the Land Acquisition Act; they should therefore
have been referred to the Minis~er; as this had admittedly not been done,
the entire proceedings were illegal and void.
However, ~ Division ~each,
in appeal, took the view that while item 29 of the Standmg Order did not
apply at all, under.item 18 it was only necessary that the proceedmgs after
the issue of the notification under s. 4 should be dealt with by the Minister.
It therefore upheld that notification but set aside all the subsequent proceedings.
In appeal before this Court the only ~uestion for consideration was
whether the notification under s. 4 was vahdly issued.
HELD: Dismissing the appeal,
The High Court had rightly upheld the validity of the notification
under s. 4 of the Act.
When authentication is in accordance with Art, 166(2) what it makCJ1
conclusive is that the order has been made by the Governor. , But the
further question as to whether, in making the order, the Governor has
acted in accordance with law, remains open for adjudication. (417 B]
R. Chitralekha v. State of Myso"'· [1964] 6 S,C.R. 268, followed.
The Governor's personal satisfaction was not necessary in the ·present
case as this was not an item of business With respect to wh:ch the Governor
is, by or unde.r the-Constitution, required to act in his discretion. [418 D-EJ
The terms of s .. 4 make it ciear that it is on the satisfaction of the
State Government that any land is needed or is likely to be needed for a
public purpose, that a notification is issued. Although in the present case
the Land Planning Committee had in fact recommended the acquisition
of the land and the issue of a notification under s. 4, there is no provision
in the Act or the rules making it obligatory on the part of the State Government to consult the Committee at this stage.
Item 18 of the Standing
Order did not therefore apply.
Other items in the order were also not
applicable and it was not therefore necessary for the proceedings to be
referred to the Minister. [420 E; 421 D-EJ
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 216 and
217 of 1964.
Appeals from the judgment and order dated March 5, 1959
G
of the Calcutta High Court in Appeals from Original orders Nos.
397 and 398 of 1958.
Bishan Narain and B.P. Maheshwari, for the appellant (in both
the appeals).
B. Sen, D. N. ·Mukherjee and P. K. Bose, for the respondents
H
Nos. I, 2, and 4 (in both the appeals).
S. K. Roy Choudhury, Rameshwar Nath, Mohinder Narain
and. P. L. Voltra, for respondent No. 3 (in both the appeals).
SUPREME COURT REPORTS
[!967) 2 S.C.R.
The Judgment of the Court was delivered b)
Vaidialingam, J.
These two appeals. on certificate, arc directed
against the judgment of the Calcutta High Court. in Appeah
from Order. 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. Acl XX! of 1948) (hereinafter referred to as the Act). is valid. The appcll:tnt and re,-
pondents. in both the appeals, arc the same and common questions
ari'e for consideration in both.
The Society of Farmers and Rural Industrialists, of whid1
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
" notification. on February 4, 1955, under s. 4 of the Acl, slating
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. 1·i:., the establishment
of an agricultural colony and the creation of better living condition~. 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 ·:otification wa> signed by the Assistant Secretary, Land and Revenue Department of the Guvernmcnt of West Bengal.
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
:\ct. 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.
Th~
objections filed by the ap;:icllant Mills, to the sanctioning of th~
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
hy the Society and for issue of a declaration, by the Government,
under s. 6 oflhe Act.
On July 21, 1956, the Government issued the
dedaralion, under s. 6 of the Act, which again, was published
in the State Gazette,
on August 9, 1956. This
declaration
\\as
signed by
the
Deputy Secretary, Land and
Revenue
Ocpartmcnl, 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.
c
D
E
F
H
A
B
c
IJ
E
II
BEJOY COTTON MILLS v. W. BENGAL (Vaidialingam. J.) 409
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 the proceedings have been initiated by
the Assistant Secretary of the Department and, orders issued
either by him or by the Deputy Secretary and hence actions taken
by them, though in the name of the State Government, are not
valid, inasmuch as they are not
in conformity with the Act.
The State Government, on the other hand, contended that there
has been due compliance with the provisions of the statute and
the proceedings taken by it arc legal and valid, as they have been
dealt with by officers who have been authorised to act in that
behalf.
Before we refer to the findings recorded by the High Court,
in the writ petition, it is necessary to refer to some of the provisions. of the Act and the rules framed thereunder, in order to
appreciate the contentions taken by the parties and the opinion
expressed by the High Court. It is also necessary to refer to
the Rules of Business, issued by the Governor of West Bengal,
under Art. 166(3) of the Constitution and the Standing Orders
made by the Minister-in-charge of the Department of Land and
Land Revenue.
Art. 166 of the Constitution is as follows :
"166. (1) All executive action of the Government
of a State shall be expressed to be taken in the name of the
Governor.
(2) Orders and other instruments made and executed
in the name of the Governor shall be authenticated in
such manner as may be specified in rules to be made
by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in
410
SUPREME COURT REPORTS
(1967] 2 S.C.R.
question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the
more
convenient transaction of the business of the
Government of the State, and for the allocatioh amo9g Ministers of the said business insofar as it is not business
with respect to which the Governor is by or under this
Constitution required to ac•. in his discretion."
In exercise of the power conferred hy Art. 166(2), the Governor
of West Bengal had issued, on August 25, 1951, the following
rules :
"(I) All orders or instruments made or executed
by or on behalf of the Government of West Bengal shall
be expressed to be made or executed by or by order of
the Governor of West Bengal.
(2) Save in cases where an officer has been specially
empowered to sign an order or instrument of the Government of West Bengal, every such order or instrument
shall be signed by either a Secretary, Joint Secretary,
Deputy Secretary, an Under Secretary or an Assistant
Secretary to the Government of West Bengal and such
signature shall he deemed to be the proper authentication
of such orders or instruments.
Under Art. 166(3), the Governor of West Bengal has framed
Rules of Business, on August 25, 1951.
Rules 4, 5, 19 and 20,
which alone are material, arc as follows :
"4. The business of the Government shall be transacted in the department specified in the First Schedule
and shall be classifkd
and distributed between those
departments as bid d )Wll therein.
5. The Governor shall ·.in the advice of the Chief
Minister allot among the Ministers the business of the
Government by assigning one or more departments to
the charge of a Minister; .
19. Except as otherwise provided by any other
rule, cases shall ordinarily be disposed of by or under
the authority of the Minister-in-charge who may by
means of standing orders give suc't directions as he
thinks fit for the disposal of case.> in the department.
Copies of such standing orders shall be sent to the Governor
and the Chief Minister.
A
B
c
D
E
F
G
H
A
B
c
D
E
F·
G
H
-
BEJOY COTTON MILLS v. W. BENGAL ( Vaidia/ingam' J.) 411
Provided that until such standing orders are made
by a Minister, the standing orders which were made
under the Rules of Business existing immediately before
the commencement of th·~se rules and which were in force
in the department in charge of such Minister immediately before such commencement shall so far as may
be, be deemed to be the standing orders for that department
made under this rule.
20. Each Minister shall by means
of standing
orderao arrange with the Secretary of the department
what matters or classes of matters are to be brought
to his personal notice. Copies of such standing orders
shall be sent to the Governor and the Chief Minister."
The Minister-in-charge of the Department of Land and Land
Revenue, with which we are concerned, in these proceedings
made Standing Orders, under rr. 19 and 20 of the Rules of Business, on November 29, 1951. Standing Order Ne. I is to the
effect that all matters specified therein, are to be brought to the
notice of the Minister. Standing Order No. 2 provided that,
apart from the matters referred to in Standing Order No. I, the
various items mentioned therein, relating to Land ati.d Land
Revenue Department, are to be brought to the notice of the Minister.
before the issue of orders. According to the appellant, the proceedings taken by the Government under the Act, are covered
by item 18, or 28 or 29 of Standing Order No. 2. Therefore,
those items alone are referred to by us; and they are as
follows :
"18. All cases proposed to be taken up by the
Land Planning Committee set up under the Land Development and Planning Act.
28. All schemes relating to :tcquisition and settlement
of waste lands.
29. All cases relating to land acquisition by companies and Industrial concerns or by Government under
the Land
Acquisition
Act
before there is
notification under Section 4 and agreement under Section 41."
Standing Order No. 5 provided that the Secretary may permit the Deputy or Assistant Secretaries to dispose of or submit
to the Minister for orders such cases or classes of cases as th~
Secretary may, by general or special order, direct, with the
approval of the Minister-in-charge. By virtue of this Standing
Order, No. 5, the Secretary, Land and Land Revenue Department·:
had issued the following Order :
412
SUPREME COURT REPORTS
[1967] 2 s.c.R.
"Suhjcct to the undermentioned provisos,
cases
A
in the different branches of the department shall be
disposed of, or when so required by any rule or order
shall be submitted to the Minister-in-charge, by 01· under
the orders of the Deputy Secretary or the Assistant
Secretary, as the cases may be, who is according to the
office organisation for the time being in force in charge
B
of the matters or classes of matters to which the cases
respectively appertain.
Provisos
•
(I) If the officer dealing with the case decides that
it is of such importance that' it should be submitted to
a higher officer in the department, it shall be so
submitted.
(2) Cases from all branches involving major questions
of principles or policy shall be submitted to the Minister-in-charge through Secretary."
We shall now refer to some of the material provisions in the
Act. Section 2(b) defines 'development scheme' as a scheme for
c
D
the development of land for any public purpose. Section 2(c)
defines 'notified area' as an area declared under sub-s. (1) of s. 4
to be a notifird area. Under s. 3, the State Government may
appoint, in accordance with the rules, an authority, referred to as · E
the prescribed authority, for carrying out the purposes of the Act.
There is no controversy that the Land
Planning Committee is
the prescribed authority appointed under s. 3 of the Act. Under
s. 4, the State Government can, by notification in the· Gu.ette,
declare any· area specified in the notification to be a notified area
'if it is satisfied that any land in such area is needed or is likely
to be needed for any public purpose ........ '.
Under s. 4A
any person interested in any land, within a notified area can file
within the time prescribed therein, objections to the acquisition
of the land in which he is interested; and the Collector has to give
an opportunity to the said objector of being heard; and, after
hearing objections and making such further inquiry, the Collector
is to submit the case to the State Government along with his
report.
Under s. 5, the State Government may direct the pres·-
cribed authority or authorise any company or local authority
to prepare, in accordance with the rules, a development scheme
in respect of any notified area. The said section also provides
for such schemes being prepared and submitted to the State
Government for its sanction. The Government may sanction the
scheme either without any modification or subject to such modifications as it considers fit.
Under s. 6, when " development
scheme is sanctioned, and when the State Government is satisfied
F
G
H
-
-
'
A
B
c
D
E
F
G
BEJOY COTTON MILLS v. w. BENGAL (Vaidia/ingam, J.)
4 I:l
that any land in the notified area for which such scheme has been
sanctioned, is needed for tlte purpose of executing such scheme,
a declaration to the effect that such land is needed for a public
purpose shall be made by the State Government. Section. IO
provides for the Government directing the prescribed authority
to execute any development scheme. sanctioned by it or cause it
to be
exec~ted in accordance
with
the rules.
Section 14
provides for the
Gov~rnment making rules for carrying out the
purposes of the Act and, in particular, in respect of matters
mentioned in sub-s. (2).
The State Government have framed rules called the West
Bengal Land Development and Planning Rules, 1948, earlier
referred to.
Under r. 3(1), the authority for carrying out the purposes of the Act is the Land Planning Committee appointed by
the State Government. Rule 5 provides for the prescribed authority to prepare and submit a development scheme when the ')tate
Government gives such directions to that authority, ;lnd it also
deals with the various other matters pertaining to the preparation
and submission of such a scheme.
H
The appellant's writ petition was heard, in the first instance,
hy a learned Single Judge of the Calcutta High Court. The
appellant raised, broadly, two contentions. The first contention
was that the notification, issued under s. 4 as well as the declan1tion, made under s. 6, of the Act, and the sanctioning of the scheme
for the notified area, were all done by the Assistant Secretary,
Land and Revenue Department of the Government of West Bengal
and the Government has not, in any m!nner, applied its mind,
in these proceedings, and, therefore, the entire proceedings are
void.
Under this head, the appellant also pkaded that, inasmuch as the executive power of the State is vested in the Governor,
under Art. 154 (I) of the Constitution, it is the satisfaction of the
Governor that is contemplated, under ss. 4 and 6 of the Act. The
second contention was that, under the Rules of Business framed
by the Governor, under Art.
166( 3) of the Constitution, the
business pertaining to the Department of Land and Land
Revenue, to which these proceedings relate, is to be dealt with personally by the Minister-in-charge; and the proceedings to be taken
under the Act cannot be delegated to the departmental officers,
by the concerned Minister. In this particuhr case, inasmuch as
the proceedings have b::en taken, and orders issued, either by
the Assistant Secret~ry or the Deputy Secretary, of the Department, without reference to the .Minister-in-charge, the entire proceedings are illegal and void. Alternatively, it was also urged
that, even if the Minister-in-charge could delegate any of the.se
functions to the subordinate officers, by making appropriate Standing Ord~rs, in this case there has been no such delegation, nutho-
·114
SUPRBMB COURT RBPORTS
[1967] 2 S.C.R.
rising the Secretary or the Assistant Secretary to deal with such
matters. In this connection, the appellant has relied on items 18,
28 and 29, referred to in Standing Order No. 2, issued by the
Minister-in-charge, as indicating that those matters have to be
dealt with only by the Minister.
On behalf of the State it was urged that, as the notification
issued under s. 4 and the declaration made under s. 6. have been
authenticated in the manner, specified by the Rules made by the
Governor under Art. 166(2) of the Constitution, it was not open
to the appellant to go behind and question the validity of either
the notification or the declaration, which
contained a recital
that the Governor was of the opinion that the lands were needed
for a public purpose. According to the State, this recital shows
that the Governor's satisfaction is clearly made out. The respondents also pointed out that the Governor had issued the
Rules of Business, under Art. 166(3) of the Constitution; and,
under rr.
19 and 20, therefore, the Minister-in-charge, of the
particular department, has been clothed with authority, by means
of Standing Orders, to give such directions, as he thinks fit, for
the disposal of the case in his department. By virtue of such authority, conferred on the Minister-in-charge of the
Department of
Lar.d and Land Revenue, in this case, the Minister has made Standing Orders, on November 29, 1951. The respondents further
urged that the proceedings taken in this case, by the State Government, under the Act, do not come under any of the items referred
to in Standing Order No. 2, which deals with matters which are to
be brought to the notice of the Minister, before issue of orders.
These matters could be "validly dealt with, by the Assistant Secretary of the said Department.
The learned Single Judge, after a consideration of the Rules
of Business, issued by the Governor, as well as the Standing Orders,
made by the Minister-in-charge and the relevant provisions. of
the Constitution, has held that the contention of the appellant,
that it is the Governor who has to be satisfied in such matters,
cannot be accepted. On the other hand, the learned Judge has
held that, in respect of the matters in question. the relevant business of the Government of the State has been allocated, by the
Governor, to the Minister concerned, by issuing Rules of Business.
The learned Judge has also held that, under the Rules of Business,
the Minister-in-charge has got authority to delegate any particular functions, to be disposed of by his subordinates. But, after
a consideration of the Standing Orders, made in this case, by the
Minister-in-charge, the learned Judge is of the view that the various
proceedings, taken by the Government under the Act, will come
under item 18 or 29 of Standing Order No. 2 and, as such, these
proceedings should have been referred to the Minister-in-charge,
A
B
c
D
E
F
G
H
A
B
c
D
F
G
H
BEJOY COTTON MILLS v. w. BENGAL ( Vaidia/ingam, J.) 4 I 5
hcfore the issue of orders. It was admitted. by the AdvocatcGcneral, before the learned Judge, that none of the proceeding,,
which arc under challenge, either in the milter of sanction or
satisfaction, received the attention of the Minister, but was dealt
with, either by the Assistant Secretary, or the Deputy Secretary
So the entire proceedings, beginning from the issue of the notification, under s. 4, d1ted February 4, 1955, and ending with the
issue of the notice, dated August 28, 1956, under r. 8 of the Rules,
were held to be illegal and void. Jn consequence, the learned
Judge granted the prayers, asked for by the appellant, in his writ
petition.
This order of the learned Judge was challenged, in two ap·
peals, before a Division Bench of the Calcutta High Court, viz.,
Appeals from Orders Nos. 397 and 398 of 1958. One appeal
was filed by the State, along with respondents 2 and 4, and the
other, by the Farmer• Society, the 3rd respondent herein.
fn
both the appeals there was a common attack against the order
of the learned Single Judge setting aside the entire proceedings taken
by the Government, under the Act. The Division Bench has also
held that Art. 166(2) is only to the effect that, when authentication is made in the manner ment.ioned therein, what is made conclusive is that the order has been made by the Governor; but,
whether, in making the order, the Governor has acted in accordance with the law, still remains open to adjudication. The learned
Judges have also held that, by virtue of the power conferred under
the Rules of Business issued by the Governor it is open to a Minister, by making proper Standing Orders, to delegate his functions
and authorise disposal of such functions to his subordinates. The
learned Judges the11 considered the question as to whether there
has been such a delegation in the Standing Orders made on November 29, 1951, regarding the Land Revenue Dapartment. They
are not prepared to accept the contention of the appellant that
item No. 29, of Standing Order No. 2, applies to these proceedings, necessitating their being dealt with by the Minister himself.
The view of the learned Judges is that the said
item will relate
only to land acquisition, made under the Land Acquisition Act;
and, the present proceedings being under the Act,
that provision will not apply. The learned Judges are also of the view that
the proceedings connected with the issue of a notification under
s. 4 of the Act, do not come under item No. 18 of Standing Order
No. 2, made by the Minister. But they are of the view that the
said item will apply to all proceedings taken by the Government
under the Act, qfter the issue of the notification under s. 4, and,
therefore, the Minister-in-charge should have dealt with the matters connected with the sanctioning of the scheme, under s. 5,
and the issue of the declaration, under s. 6,
But, inasmuch as
the Minister has, admittedly, not dealt with those proceedings.
·11 G
SUPREME COURT REPORTS
[1967) 2 S.C.R.
at that subsequent stage, the learned Judges held that all orders
passed, and notifications issued, subsequent to the stage of the issue
,,f the notificntion, under s. 4, will have to be set aside as void.
In view of the fact that the learntd Judges held that the issue of
a notification, under s. 4, is not a matter which has to be dealt
with by the Minister and, as the exercise of the functions i11 that
regard have been delegated under the Standing Order, that notification was allowed to stand. Jn consequence, the learned Judh>es
modified the order of the learned Single Judge, to the extent indicated above.
In these appeals, by certificate, the only question that arises
for c.onsideration is regarding the correctness of the views expressed by the learned Judges of tho Division Bench of the Calcutta High Court, upholding the validity of the notification, dated
February 4, 1955, issued under s. 4 of the Act.
On behalf of the appellant, Mr. Bishan Narain, learned counsel, raised substantially the same contentions that were taken in
the writ petition before the High Court. According to learned
counsel, the reasons given by the Division Bench, for setting aside
the notifications and orders issued under ss. 5 and 6 of the Act,
as well as the other subsequent proceedings, apply with equal
force to the notification issued under s. 4. The learned counsel
also urged that, inasmuch as the executive power of the State is
vested, under Art. 154, in the Governor, the satisfaction, contemplated before issue of the notification under s. 4 of the Act, should
have been arrived at by the Governor
himself. Counsel also
urged that. even if, under the Rules of Business, issued under Art.
166(3) of the C0nstitution, by the Governor, a Minister-in-charge
can
delegate his functions, by making suitable Standing Orders
in that regard, in this case, the St·rnding Orders m1de by the Minister-in-charge, will clearly show that all the m:1tters connected "ith
the proceedings to be taken under the Act, have been reserved to
b: dealt with by the Minister himself. Therefore, according
to counsel, inasmuch as, admittedly, the
Mitlistcr has not dcult
with any of these proceedings, even the issue of a notification under
s. 4 is illegal and void. In this connection, learned counsel referred us to items 18, 28 and 29, of Standing Order No: 2, made
hy the Minister-in-charge, in this case. We may, at this stage,
indicate that no contention was taken before us that even if authorised by the Rules of Business, a Minister-in-ch~rge cannot legally
.delegate any such matters to be dealt with by his subordinates,
hy making appropriate Standing Orders.
The same contentions taken in the High Court, on behalf of the State, have been advanced before us, by Mr. B. Sen,
learned counsel.
A
II
c
D
E
F
' j
•
G ,
'
H
J
I
A
B
c
D
E
f
G
H
BEJOY COTTON MILLS v. w. BENGAL ( Vaidialingam, J.) 41 7
We have already referred to the Rules of Business and Standing Orders. We are in entire agreement with the views expressed
by both the learned Single Judge as well as the Division Bench
of the Calcutta High Court regarding the scope of Art. 166(2)
of the Constitution. The learned Judges are perfectly correct in
their view that what the authentication makes conclusive, under
Art. I 66(2), is that the order has been made by the Governor.
But the further question as to whether, in making the order, the
Governor has acted in accordance with law, remains open for
adjudication.
Jn this connection, we may refer to the decision
of this Court in R. Chitralekha 1·. State of Mysore('). Subba
Rao, J., (as he then was), explains the scope of Art. 166, at p. 376,
thus :
"Under Art. 166 of the Constitution all executive
action of the Government of a State shall be expressed
to be taken in the name of the Governor, and that
orders made in the name of the Governor shall be authenticated in such manner as may be specified in rules
to be made by the Governor and the validity of an order
which is so authenticated shall not be called in question on the ground that it is not an order made by the
Governor.
If the conditions laid down in this Article are complied with, the order cannot be called in question on
the ground that it is not an order made by the Govenor.
It is contended that as the order in question was not
issued in the name of the Governor the order was void
and no intezyiews could be held pursuant to that order.
The law on the subject is well-settled.
In Dattatreva
Moreshwar Pangarkar v. The State of Bombay (1952
S.C.R. 612, 625) Das J., as he then was, observed :
'Strict compliance with the requirements of article
166 gives an immunity to the order in that it cannot
be challenged on the ground that it is not an order made
by the Governor. If,
therefore, the requirements of
that article are not complied with, the resulting immunity cannot be claimed by the State. This, however.
does not vitiate the order itself .......... Article 166
directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render
the executive action a nullity. Therefore, all that the
procedure established by law requires is that the appropriate Government must take a decision as to whether
[lj (1964) 6 S.C.R. 368.
M!Sup. Court/67-13
4 I 8
SUPREME COURT REPORTS
( 1967) 2 S.C.R
the detention orda should be confirmed or not under section 11(1).'
The same view was reiterated by this Court in The
State of Bombay v. Purshottam Jog Naik (1952 S.C.R.
674), where it w?s pointed out that though the order
in question then was defective in form it was open to
the State Government to prove by other means that
such an order had been validly made. This view has
been reaffirmed by this Court in subsequent decisions :
see Ghaio Mall and Sons v. The State of Delhi (1959 S.C.R.
1424), and it is, therefore, settled law that provisions of
Art. 166 of the Constitution are only directory and not
mandatory in character and, if they are not complied
with, it can be established as a question of fact that the
impugned order was issued in fact by the State Government or the Governor."
We are also in agreement with the views expressed by the
High Court that the Governor's personal satisfaction was not
necessary in this case as this is not an item of business with respect to which, the Governor is, by or under the Constitution, re-
<juired to act in his discretion. Although the executive Government of a State is vested in the Governor, actually it is carried
on by Ministers; and, in this particular case, under rr. 4 and 5
of the Rules of Business, referred to above, the business of Government is to be transacted in the various departments specified in the First Schedule thereof. Item 5 therein is the Department of Land and Land Revenue, and the Governor has allotted
the business of that Department to a Minister. We are further
in agreement with the views of the High Court that the said
Minister-in-charge, has got power to make Standing Orders regarding the disposal of cases, in his Department,
under the
Rules of Business issued by the Governor, on August 25, 1951,
under Art. 166(3) of the Constitution. In this case, there is no
controversy that the Minister-in-charge, of the Department
of Land and Land Revenue, has made Standing Orders on Novcraber 29, 1951, by virtue of powers given to him under rr. 19
and 20 of the Rules of Business.
According to the appellant, the entire proceedings connected
with the acquisition under the Act, in this case, will come under
either item 18, 28 or 29 of Standing Order No. 2 i;nd, in consequence, they require to be dealt with by the Minister before orders
arc issued. Inasmuch as the validity of the notification, under
s. 4, issued under the Act, alone arises for consideration, in these
A
B
c
D
E
F
G
H
B
c
0
E
F
G
' !
H
BEJOY COTTON MILLS v. w. BENGAL (Vaidialingam, J.) 419
appeals, the only question is as to whether it was necessar)'. for
that matter also to be placed before the Minister-in-charge, either
under item 18, 28 or 29 of Standing Order No. 2. Those items
have been referred to, by us, in the earlier part of this
judgment.
We have no hesitation in rejecting the contention of the
appellant that item 29 will take in proceedings connected with
the issue of the notification, under s. 4. As pointed out by the
learned Judges of the Division Bench of the Calcutta High Court,
that item relates only to acquisition, under the Land Acquisition Act; and, inasmuch as the issue of the notification, under
s. 4, in this case, is under the Act, that is not covered by the said
item. So, item 29 does not apply. Learned counsel then urged
that this must be considered to be a scheme relating to acquisition and settlement of waste lands, in which case, item No. 28
. will stand attracted. So far as this is concerned, the learned Single Judge, who dealt with the writ peUion, has negatived the contention of the appellant. The learned Judge has found, as a fact,
that there is no evidence to show that the lands, which are the
subject of the issue of notification, under s. 4, are waste lands;
and, therefore, he has held that it cannot be said that the notification relates to acquisition of waste lands. The learned Judge
has also stated that, even the app~llant, in his writ petition, has
not alleged that the land, or any part of it, is waste. In this
view, the learned Judge has held that, on the evidence, it is not
possible to hold that the acquisition relates to waste lands.
No doubt, the Division Bench has not expressed any opinion on
this aspect,
but, as the records now stand, we liave to accept the findings recorded by the learned Single Judge, in
which case, it follows, that the appellant cannot rely upon item
No. 28, eithei.
This leaves us with the question as to whether the issue of a
notification under s. 4 of the Act is a matter covered by item No.
18 of Standing Order No. 2, issued by the Minister. If it is a
matter covered by the said item, there can be no controversy that,
before the issue of the notification under s. 4, the matter should
have been dealt with by the Minister-in-charge. In tnis case,
as we have already pointed out, the Minister-in-charge has not
dealt with those proceedings; and it is admitted that the Assistant Secretary of the Land and Land Revenue Department of
the Government of West Bengal, who issued the notification,
under s. 4, alone dealt with the matter. The learned Single
Judge has, no doubt, accepted the contention of the appellant
that item No. 18 of Standing Order No. 2 applies, to all proceedings taken under the Act, including the issue of a notification, under s. 4. On the other hand, the learned Judges of
the Division Bench have taken a
contrary
view,
on this
420
SUPREMB COURT REPORTS
(1967] 2 SC.R.
aspect.
Having due regard to the Act and the Rules, and the
matter dealt with by item No. 18, we are in agreement with
the views expressed by the learned Judges of the Division Bench
that item No. 18, of Standing Order No. 2, does not apply
to proceedings connected with the issue of a notification,
under s. 4, of the Act.
We have gone through the entire prov1s1ons of the Act,
as well as the Rules framed thereunder; and, so far as we
can see, the Land Planning Committee, which is the prescribed authority, under s. 3 of the Act, comes into the
picture only when the State Government takes action, under
s. 5, regarding the preparation of a development scheme, and
at subsequent stages. The Land Planning Committee, set up
under the Act, does not come into the picture, at the stage
when the Government issues a notificaton, under s. 4 of the
Act.
Jn this connection, it is necessary to note that the expression 'notified area', under s. 2(c) of the Act, means an area
declared, under sub-s. (I) of s. 4, to be a notified area. The
State Government is given power, under s. 4, by issue of a notification in the Gazette, to declare any area, specified in the
notification, to be a notified area, if it is satisfied that any land,
in such area, is needed or is likely to be needed, for any public
purpose.