# JSHWARLAL GIRDHARLAL JOSHI ETC v. STATE OF GlJ.JARAT & ANR

- **Citation:** [1968] 2 S.C.R. 267
- **Court:** Supreme Court of India
- **Decided:** 1965-03-10
- **Case number:** Civil Appeals Nos. '!183, 915 to 967 and 1042 to 1044 of 1967
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jshwarlal-girdharlal-joshi-etc-v-state-of-glj-jarat-anr-4317
- **Pages:** 20

## Headnote

A
JSHWARLAL GIRDHARLAL JOSHI ETC.
v.
STATE OF GlJ.JARAT & ANR.
Nol'e/11/Jt'r 16, 1967
B
fl\1. JllllAYATULLAII, V:BHARGAVA AND C. A. VAIDIALINGAM, JJ.J
c
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G
Constitution of India, 1950, Art. 166 and Rules of Business, rr. 7, 10,
13 and IS-Notifications under Land Acquisition Act (! of 1894)-
H'/H'!her cu:tld be signed by an Under Secretary-Fnnnation of opinion
regarding urgency and nalllre of /and-Wheth<r could be delegated
to
Secretary-Standing Orders, if necessary-Arable land, meaning "f,
By a notification under s. 4 of the Land Acquisition Act issued on
March 10, 1965 the respondent State Government notified that certain
lands were needed for a public purpose, namely, the construction of the
State capital, that the Qoverrunent was satisfied that they were 'arable
lands' and further directed under s. 17(4) of the Act, that as the acquisition of the lands was urgently .11ecessary, the provisions of s. SA would
not appjy.
Thereafter, a notification was issued under s. 6 containing a
direction under s. 17(1) of the Act enabling the Collector to take possession of all the ~rable lands on the expiry of 15 days from the publication
of the notice under s. 9(1) of the Act.
Both Notifications were signed
by an Under Secretary of the respondent-Government.
The .petitioners challenged the notifications ·in writ petitions under
Art. 226.
In the original affidavits, the petitioners merely asserted that
the Government had not mad.e up its mirid regarding the acquired lands
as to urgency and that the lands were not arable.
The parti.,. filed a
number of affidavits at various stages of the hearing, the Government in
order tO establish tjlat everything \Vas regularly done,
while the
peti~
tioners alleged infractions. In one of the affidavits on behali of the Government it was stated that the Minister-in-charge
gave oral instructions
to the -Secretary that he or his under-secretaries may take action under
s. 17 ( 1) and ( 4) of the Act according to law, that the Secretary was
satisfied regarding urgency and gave inst£11ctions to the Under Secretary
to take the necessary action. The High Court after considering the affidavits, dismissed the petitions.
In appeal to this Court it was
contended that: (i) only a Secretary
could sign the notifications and that the Under Secretary who signed the
notification under s. 6 was not duly authorised to do so; (ii) that there
was no formation of opinion by the Government as regards urgency or
that the lands were arable; (iii) that this function could not be delegated
to the Secretary and even if it could be delegated, a general oral instruction given by the ?vfinister was not according to the proceJ\lre prescribed
by the Rules of Business; (iv) that since the lands in question were under
cultivation, they were not waste or arable lands; and (v) that sub-SS. ( t)
and (4) of.s. 17 of the Act were violative of Arts. 14 and 19(\)(f) of
the Constitution:
1JELD : Disrni~sing the petitions.
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(I) 'fhc V.lord ·secretary' is not· dc·fincd in the Land· Acquisition Act
or the General Clauses Act so as to exclude Additional, Joint, Deputy.
Under or Assistant Secretaries.
On the <.ither har1d. r.lJ rif the Rules of
Business fro.n1ed under Art. 166 of the Conslituti<Jn specifically places a
268
SUPREME COURT REPORTS
[l%8j 2 S.CR.
Secretary, Joint Secretary, Deputy Sc~rctary, Un.der Secretary and Assistant
Secretary on equality for authenticaoon of orders and
wt~ents . of
Government.
The Under Secretary was, thereforo, competent to Sign
the notifications.
[273F; 274E]
Even if he did not possess the power as a Secretary he viould have
been competent as an officer 'duly authorised', within the meaning of s. 6
of the Act, by virtue of r. 13 of the Rules of Business. [274F]
·
(il) Under Art. 166 of the Constitution the validity of the notification
could not be called in question on the ground that it was not an order
made by the Governor, because, as required by the Article _the executive
action of the Government was expres

## Text

_Characters 0–39,695 of 54,460. This is a partial read: ask again with offset=39695 for what follows._

A
JSHWARLAL GIRDHARLAL JOSHI ETC.
v.
STATE OF GlJ.JARAT & ANR.
Nol'e/11/Jt'r 16, 1967
B
fl\1. JllllAYATULLAII, V:BHARGAVA AND C. A. VAIDIALINGAM, JJ.J
c
D
F
G
Constitution of India, 1950, Art. 166 and Rules of Business, rr. 7, 10,
13 and IS-Notifications under Land Acquisition Act (! of 1894)-
H'/H'!her cu:tld be signed by an Under Secretary-Fnnnation of opinion
regarding urgency and nalllre of /and-Wheth<r could be delegated
to
Secretary-Standing Orders, if necessary-Arable land, meaning "f,
By a notification under s. 4 of the Land Acquisition Act issued on
March 10, 1965 the respondent State Government notified that certain
lands were needed for a public purpose, namely, the construction of the
State capital, that the Qoverrunent was satisfied that they were 'arable
lands' and further directed under s. 17(4) of the Act, that as the acquisition of the lands was urgently .11ecessary, the provisions of s. SA would
not appjy.
Thereafter, a notification was issued under s. 6 containing a
direction under s. 17(1) of the Act enabling the Collector to take possession of all the ~rable lands on the expiry of 15 days from the publication
of the notice under s. 9(1) of the Act.
Both Notifications were signed
by an Under Secretary of the respondent-Government.
The .petitioners challenged the notifications ·in writ petitions under
Art. 226.
In the original affidavits, the petitioners merely asserted that
the Government had not mad.e up its mirid regarding the acquired lands
as to urgency and that the lands were not arable.
The parti.,. filed a
number of affidavits at various stages of the hearing, the Government in
order tO establish tjlat everything \Vas regularly done,
while the
peti~
tioners alleged infractions. In one of the affidavits on behali of the Government it was stated that the Minister-in-charge
gave oral instructions
to the -Secretary that he or his under-secretaries may take action under
s. 17 ( 1) and ( 4) of the Act according to law, that the Secretary was
satisfied regarding urgency and gave inst£11ctions to the Under Secretary
to take the necessary action. The High Court after considering the affidavits, dismissed the petitions.
In appeal to this Court it was
contended that: (i) only a Secretary
could sign the notifications and that the Under Secretary who signed the
notification under s. 6 was not duly authorised to do so; (ii) that there
was no formation of opinion by the Government as regards urgency or
that the lands were arable; (iii) that this function could not be delegated
to the Secretary and even if it could be delegated, a general oral instruction given by the ?vfinister was not according to the proceJ\lre prescribed
by the Rules of Business; (iv) that since the lands in question were under
cultivation, they were not waste or arable lands; and (v) that sub-SS. ( t)
and (4) of.s. 17 of the Act were violative of Arts. 14 and 19(\)(f) of
the Constitution:
1JELD : Disrni~sing the petitions.
H
(I) 'fhc V.lord ·secretary' is not· dc·fincd in the Land· Acquisition Act
or the General Clauses Act so as to exclude Additional, Joint, Deputy.
Under or Assistant Secretaries.
On the <.ither har1d. r.lJ rif the Rules of
Business fro.n1ed under Art. 166 of the Conslituti<Jn specifically places a
268
SUPREME COURT REPORTS
[l%8j 2 S.CR.
Secretary, Joint Secretary, Deputy Sc~rctary, Un.der Secretary and Assistant
Secretary on equality for authenticaoon of orders and
wt~ents . of
Government.
The Under Secretary was, thereforo, competent to Sign
the notifications.
[273F; 274E]
Even if he did not possess the power as a Secretary he viould have
been competent as an officer 'duly authorised', within the meaning of s. 6
of the Act, by virtue of r. 13 of the Rules of Business. [274F]
·
(il) Under Art. 166 of the Constitution the validity of the notification
could not be called in question on the ground that it was not an order
made by the Governor, because, as required by the Article _the executive
action of the Government was expressed to be taken in the name of the
Governor and the order was authenticated in the manner required by r. 13
of the Rules of Business. In addition, there is also the presumption of
regularity of official acts. Therefore, the bare assertion that Government
had not formed an opinion could not raise an issue.
The Government
was not called upon to answer the affidavit of the petitioners and
the
Government need not have undertaken the burden of showing the rei:ularity of their action.
[275 B-G; 278 D, F]
(iii) Rules 7, 10, 13 and 15 of the Rules of Business specifically
allow conferral of powers cm Secretaries and the determination of the
Secretary becomes the
determination of the Government. There is
nothing in the Rules or ins.tructions which prescribes that the authority
must be in writing or by Standing Orders.
Under Paragraph 3 of the
instructions issued by tho Governor under r. 15 of the Rules of Business.
Standing Orclers are necessary for the disposal of cases in the department.
and a case is defined as 'the papers under consideration and all previous
papers and notes put in connection tbereW:itb to enable the question
raised to be disposed or. Paragraph 4, on the other hand refers
to
"matters or classes of matters".
Therefore, paragraph 3 only refers to
the disposal of cases and not to matters arising in a case, regarding which
under paragraph 4, the Minister may arrange with the Secretary whether
they are to be brought to his personal notice or not. The matters in the
present case were the application of s. 17(1) and (4), to the acquisition
of waste and arable lands and the Minister could leave this matter to his
Secretary as he did.
For this purpose, Standing Orders were not necessary and oral instructions would be sufficient. The Secretaries concerned
were gh·en the jurisdiction to take action on behalf of Government and
they satisfied themselves about the need for acquisition under s. 6, the
urgency of the matter and the existence of waste and arable lands for
the application of sub-ss. (I) and (4) of s. 17. Therefore, on a review
of the affidavits, the provisions of the Act ancl the Business Rules and
Instructions, the directions under sub-ss. ( 1) and ( 4) of s. 17 were not
invalid. [280 D-G; 281 C-D; 282 E-G]
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Shayamaghana Ray v. State, A.I.R. 1952 Orissa 200, referred to.
G
Emperor v. Shibnath Banerji, L.R. 72 I.A. 241, distinguished.
(iv) Arable land under the Act is not only land capable of cultiva-
..
tion but also land actually under cultivation. The words 'compensation
.,._
for the standing crops and trees (if any) on such land' ins. 17(3), show
that the land may have crops or 11;, fallow and the crops can only be on
orahle land. hecause, if crops could grow or were actually i::rown the
H
l:ind would hardh· he waste land. [286 A-B, E]
Baldeo Singh & Ors.
v. State of U.P.
A.LR.
1965
AIL 433,
Smt. Lakshmi Devi & Ors. v. State of Bi/tar & Ors. A.LR. 1965 Pat. 400
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GIRDHARLAL v. GUJARAT (Hidayaiullah, J.)
269
and Guntur Rama/akshmamma v. Govt. of Andhra Pradesh, A.I.R. 1967
A.P. 280, approved ..
Sadruddin Suleman v. 1. H. Patwardhan, A.I.R. 1965
Bom.
224.
over-ruled.
(v) The High Court had rightly held that sub-ss. (1) and (4) and 17
wer~ not unconstitutional. [286 F-G]
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. '!183,
915 to 967 and 1042 to 1044 of 1967.
Appeals from the judgment and order dated December 2, 5,
12 and 13, 1966 of the Gujarat High Court in Special Civil Applications Nos 1003, 1177, 1178, 1183, 1186, 1195, 1197 to 1202,
1205 to 1210, 1220 to 1222, 1244, 1275, 1374, 1377, 1380,
1387, 1389 of 1965, 68 to 70, 72 to 74, 76, 77, 80, 83, 84, 166,
183, 393, 399, 547, 554, 790 of 1966, 1187, 1188, 1233 of
1965, 75, 154, 202, 402, 403 of 1966, and 1179, 1184 and 1185
of 1965.
B. Sen, S. K. Dholakia and Vineet Kumar, for the appellant
(in C. A. No. 883/1967).
S. K. Dholakia and Vineet Kumar, for the appellants
(in
C. As. Nos. 915 to 967 and 1042 to 1044 of 1967).
S. V. Gupte, A. K. Kazi, 0. P. Malhotra and S. P. Nayar, for
the respondents (in C. As. Nos. 883 and 915 to 967 of 1967).
A. K. Kazi, 0. P. Malhotra and S. P. Nayar, for the respondents (in C. As. Nos. 1042 to 1044 of 1967).
The Judgment of the Court was delivered by
llidayatullah, J.--On March 10, 1965, the Government of
Gujarat notified under s. 4 of the Land Acquisition Act that certain lands were needed for a public purpose, namely, the construction of the cupital of the State at Gandhinagar and that Government was satisfied that they were 'arable lands'.
Government
further directed under s. 17 ( 4) of the Act that as the acquisition
of the said lands was urgently necessary the provisions of s. SA
of the Act shall not apply in respect of the lands.
A list of the
lands was appended to the notification.
This notification was
followed by another on July 31, 1965 under s. 6 of the Land
Acquisition Act and it contained a direction under s. 17 ( 1) of the
Act, enabling the Collector, on the expiration of 15 days from the
publication of the notice under s. 9 (1) of the Act, to take possession of all arable lands specified in the earlier notification.
Both
notifications were signed by L. P. Raval, Under Secretary to
Government and were shown to be by order and in the name of
the Governor ·of Gujarat.
Numerous petitions were filed in the High Court of Gujarat
under Art. 226 of the Constitution by the owners of the lands
LJSup. C. I./68-3
'
no
SUPREME COUllT REPORTS
(1968] 2 S.C.R.
affected by the notifications to challenge the validity of the acqui-
,\
sition.
One such petition was numbered Petition No.
I 003 of
1965 and it was typical of all the others.
The facts in all the
petitions were the same, save the details of the lands, and as the
contentions were also the same, the High Court pronounced a
common judgment applicable to all, on December 2/5, I 966 and
dismissed them.
The High Court, however, granted " certificate
B
under Art. 13 3 ( J) ( c) of the Constitution and the present appeals
have been brought.
Civil Appeal No. 883 of 1967 arises from
the Special Civil Application No. 1003/65 and the other appeal'
ar.: in the other petitioru;. This judgment will accordingly dispose
of all the appeals.
Before we consider the arguments we may see the relevant
provisions of the Land Acquisition Act.
The scheme of the Act,
which entered into force alnlost seventy-five years ago, is by now
familiar to lawyers and courts and it is not necessary to refer in
detail to it. , The High Coun has painstakingly analysed the provisions already.
We $all refer in passim to what is material to
the discussion. Acquisition of land under the. Act originarily
begins with t1 preliminary inquiry.
Government
notifies
first
under s. 4 that 'land in any loc~lity is needed or is likely to be
needed' for a public purpose.
Public notices are also given. This
enables the officers of Government to enter upon lands to survey
them and also enables persons interested to object to tho acquisition generally and also particularly in accordance with the provisions of s. 5A of the Act.
After the objections have been considered and Government has satisfied itself on the report or report•
of the Collector that a particular land is needed, a second
notification is issued under s. 6 that a particular land is needed
for the public purpose.
This declaration is conclusive evidence
that the land is so needed and Government then proceeds to
acquire the land.
The procedure is detailed in the sections that
follow.
Under s. 9(1) the Co!lector causes public notices to be
given that Government intends to take possession of the lands and
that claim to compensation for all interests in lands shall be made
to him.
Then commence proceedings for the fixation of compensation with the details of which procedure we arc not presently
concerned.
When these proceedings are completed the Collector
makes his award about the true area, the compensation to be
allowed and the apportionment of that compensation among persons known or believed to be interested.
When the Collxtor ha•
made his award (which is made conclusive for certain purposes)
s. 16 enables him to take pos=sion of the lands and the land~
vest absolutely in Government free from all encumbrances.
This
is provided in s. I 7. Under this procedure Government in cases
award.
There is a shorter procedure for ca~ of urgency and it
is provided in s. 17. Under this procedure Government in cases·
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GIRDHARLAL v. GUJARAT (Hidayatullah, J.)
271
of urgency, is enabled inter alia to omit the application of s. SA
and to notify the lands under s. 6 at any time after the publication
of the notification under s. 4( 1). Under sub-s. (1) of s. 17,
Government cail direct the Collector, though no award has been
made, to take possession of any waste or arable lands needed for
the public purpose, on the expiration of fifteen days from the
publication of the notice under s. 9. Under sub-s. _ ( 4) of
th~
same section Governinent may direct that in the case of any land
to which in its opinion the provisions of the first sub-section are
applicable, the provisions of s. SA ohall not apply and if it so
directs a declaration may be made under s. 6 in respect of that
land at any time after the notification under s. 4(1) has been published.
It will therefore, be noticed that the shorter procedure
has been followed here. Before we refer to the grounds on which
the action of Government is challenged we may read ss. 4 (1)
6(1) omitting the proviso, ands. 17. Although we are principally
concerned with the first and fourth sub-section of the last section
w~ shall be required to refer to the remaining sub-sections, and
we shall read the section as a whole :
"4 ( 1 ) Whenever it appears to appropriate Government
that land. in any locality is needed or is likely to
be needed for any public purpose, a notification
to that effect shall be published in the Official
Gazette, and the Collector shall cause public
notiee of the substance of such notification to be
given at convenient places in the said locality.
6(1) Subject to the provisions of Part VII of this Act,
when the appropriate Government is satisfied,
after considering the report, if any, made under
section SA, sub-section (2), that any particular
land is needed for a public purpose, or for a
Company, a declaration shall be made to that
effect under the signature of a Secretary to such
Government or of some officer duly authorized
to certify its orders and different declarations
may be made from time to time in respect of
different parcels of any land covered by the same
notification under section 4, sub-section ( 1),
irrespective of whether one report .or different
reports has or have been made (whenever requir
eel) under section SA, sub-section (2).
17 ( 1) In cases of urgency, :.vhenever the appropriate
Govel'l'ment so directs, the Collector, though no
such award has been made, may, on the expiration of fifteen days from the publication of the
notice mentioned in section 9, sub-section (1),
272
SUPltl!MB COURT UPOl.TS
[1968) 2 S.C.R.
take possession of any waste or arable land
c~ed for public purposes or for a Company.
Such land shall thereupon vest absolutely in the
Government, free from all encumbrances.
(2) Whenever, owing to any sudden change in the
channel of Jny navigable river or other unforeseen emergency,
it becomes necessary for any
Railway Administration to acquire the immediate
possession of any land for the maintenance of
their traffic or for the purpose of making thereon
a river-side or ghat station, or of providing convenient connection with or access to any such
station, the Colloctor may, immediately after the
publication of the notice mentioned in sub-section ( 1 ) and with the previous sanction of the
appropriate Government, enter upon and take
possession of such land, which shall thereupon
vest absolutely in the Government free from all
encumbrances :
Provide(! that the Collector shall not take
possession of any building or part of a building
under this sub-section with0ut giving to the occupier thereof at least forty-eight hours' notice of
his intention so to do or such lon~er notice as
may be reasonably sufficient to enable such occupier to remove his movable property from such
building without unnecessary inconvenience.
(3) In every case under either of the preceding subsections the Collector shall at the time of taking
possession offer to the persons interested compensation for the standing crops and trees (if
any) on su~h land and for any other damage
sustained by them caused by such sudden dispossession and not excepted in section 24; and,
in case such offer is not accepted, the value of
such crops ana trees and the amount of such
other damage shall be allowed for in awarding
compensation for the land under the provisions
herein contained.
( 4) In the case of any land to which, in the opinion
of the appropriate Government, the provisions
of sub-section (I, or sub-section \2) are applicable, the appropriate Government may direct
that the provisions of section 5A shall not apply,
and, if it does so direct, a declaration may be
made under section 6 in respect of the land at
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GIRDHARLAL v. GUJARAT (Hidayatullah, 1.)
27 3
any time after the publication of the notification
under section 4, sub-section ( 1) ".
In the High Court sub-ss. (1) and ( 4) of s. 17 of f!ie Act
were assailed under Arts. 14 and 19(1) (f) of the Constttution.
This argument was placed at the forefront.
In this Court tl_tls
submission was relegated to the end.
Apparently not much faith
was reposed in its potmcy. The other arguments urged before the
High Court and found against the appellants, were pressed with
vigour upon us.
These arguments concern the issue of notifications invoking the shorter procedure and those notification~ are
questioned.
These arguments involve the validity of the notifications as (a) unauthorised by Gov1<mment, (b) without formation
of the necessary opinion on relevant matters, and ( c) on erroneous
assumption of facts.
The first ground, when amplified, is that
D. P. Raval, Under Secretaty, wbo signed the notifications under
s. 6 was not duly authorised to do so under the Act and the notifications were, foerefore, invalid and of no effect.
The second
ground is based on the assertion that there was no formation of
opinion by the Government as regards urgency or that the lands
were arable, and on both the points the Act requires Government to reach a decision, which fact has not been established if not
disproved.
The third ground proceeds on the meaning of the expression 'arable land' which, it is claimed, denotes land capable
of cultivation or tillage but not land already under the plough.
We shiill now proceed to consider each point in turn.
Raval's authority to issue the notification under s. 6 is questioned on the wording of the latter portion of that section where
it is mentioned that "the declaration shall be made ....... under
the signature of a Secretaty to such Government or some officer
duly authorised to certify its orders."
The argument is without
substance.
The word 'Secretary' is not defined either in the Land
Acquisition Act or the General Clauses Act so as to exclude Additional, Joint, Deputy, Under or Assistant Secretaries. If this were
established, then it might be said that the word was intended to
designate only the head of the secretarial department concerned
with land acquisition.
No such indication is available from any
source.
Nor was it necessaty to invest any particular Secretary
specially under the Act for no such requirement can be spelled out
from the words relied upon.
On the other hand, the business of
Government is regulated by the ilules of Business made under
Art. 166 of the Constitution.
How those Rules operate will be
more fully considered presently when we deal with the second
point. For the present it is sufficient to point out a few provisions
of the Rules.
Rule 7 provides :
"7. Each Department of the Secretariat shall consist
of the Secretary to the Government, who shall be lhe
274
S'IJPIU!MB couaT J.BPOl.TS
[1968) 2 S.C.R.
official head of that Department and of "Such other
officers and servants subordinate to him as the State
Government may determine :-
Provided that -
(a) more than one Department may be placed in
A
charge of the same Secretary;
B
(b) the work of a Department may be divided between two or more Secretaries."
If this Rule stood by itself, it might have been necessary to place
on record evidence to establish that the work of this Department
was divided among the Secretaries and how, but Rules 13 and 15
additionally provide :
"13. Every order or instrument of the Government
of the State shall be signed either by a Secretary, a.n.
Additional
Secretary,
a Joint Secretary,
a Deputy
Secretary, a.n Under Secretary or a.n Assistant Secretary
or such other officer as may be specially empowered in
that behalf and such signature shall be deemed to be the
proper authentication of such order or instrument."
"15. These rules may to such extent as necessary
be supplemented by instructions to be issued by the
Governor on the advice of the Chief Minister."
Rule 13 specifically places all Secretaries on equality jor authentication of orders and instruments of Government and Rule 1 S further authorises supplemental instructions which a.s ·vie shall presently see were in fact issued.
Thus Raval was competent to
sign the declaration as a Secretary. It is not necessary to consider
whether he can be treated as an officer 'duly authorised' because
he already had authority by virtue of his office and rule 13 of the
Rules of Business contemplates officers other than Secretaries.
But if he did not possess the power as a Secretary he would undoubtedly have been competent as an officer duly authorised by
virtue of rule 13 of the Rules of Business and that is all that s. 6
requires.
No further special authorisation under the Act was
necess~.
To overcome these rather obvious difficulties Mr. B. Sen
raised the second point which was that the provisions of the Act
require Government to form an opinion and this function cannot
be delegated to the Secretaries and even if it could be delegated.
strict compliance with Rules of Business
and the instructions
issued under Rule 15 was necessary.
He submits that there was
no formation of the necessary opinion in the case before action
under s. 17 (1) or ( 4) was taken.
To understand this argument
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GIRDHARLAL v. 00.JAR,\T (Hit/ayolu//ah, /.)
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which was ably placed by Mr. Sein we have to review some other
provisions on the subject. To begin with Art.
166 of the
Constitution provides :
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"166. Conduct of business of the Government of a
State.
( 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 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 allocation
among Ministers of the said business in so far as
it is not business with respect to which the Governor is by or under this Constitution requirei
to act in his discretion."
It is obvious that the executive action of the Government was in
fact expressed to be taken in the name of the Governor, and that
the orders were authenticated in the manner required by rule 13
of the Rules of Business already quoted.
The validity of the
order could not, of course, be called in question that it was not
an order made by the Governor. Had the Government sheltered
itself behind the COQStitutional curtain, it is a little doubtful if the
appellants could have successfully pierced this barrier by merely
stating that the Government had not passed the orders or made the
necessary determination without alleging definite facts.
In addition to the constitutional provision there is also the presumotion
of regularity of official acts.
Orders of Government, whether .at
ministerial or gubernatorial level, are all issued in the same fonn
and the constitutional protection as well as the presumption both
cover the case.
But, as it happens frequently, Government tried ·to establish
that everything was regular.
A batch of counter affidavits was
filed on behalf of Government to show how the matter was dealt
with from stage to stage and the appellant filed affidavits in rejoinder and were not slow. to point .out infractions or supposed
infractions.
As they sougjlt to do this on facts furnished by the
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(1968] 2 S.C.R.
affidavits on behalf of Government we may say a word about
those affidavits.
No less than eight affidavits were filed by Government and
five affidavits including one supporting the petition were filed by
the petitioner in Special Civil Application No. 1003 of 1965.
Other affidavits on behalf of the other petitioners repeated the
allegations.
The affidavits filed with the petitions had averred
onl} that Government had not 'made up its mind regarding
acquired lands', that the satisfaction was 'mala fide' and 'colour·
able' and that the gap of time between the two notifications itself
showed that there was no urgency.
The affidavits also raised
the issue that the lands were not 'arable lands'.
Government
apparently took up the challenge and filed affidavit nfter affidavit The first affidavit was filed by L. P. Raval, Under Secretary
(Oct. I, 1965) that the lands were 'arable lands' and Government had formed the opinion about urgency, and further that the
determination of these two matters by Government was not justiciable.
This was followed by an affidavit by the Executive
Engineer (Oct. 8, 1965) who stated that the master plan was
ready which involved 12 villages incluc'ing Pethapur where these
lands are situated.
The lands were involved in the construction
of main roads and the laying out of sectors.
He explained the
delay between the two notices on the ground that survey had to
be done and that took time but reaffirmed that the matter was
urgent.
The appellants promptly questioned the formation
of
opinion by alleging that Government had not formed the opinion
and that the affidavit of Raval did not establish •his.
In reply
another Under Secretary (Nimbalkar) filed an affidavit (Nov. 8
1965) that Jayararnan, Deputy Secretary was 'subjectively satisfied' that the lands were 'arable lands' and that there was urgency
and asserted that both matters were for the subjective determination of Government and thus not open to question in a court of
law.
This was followed by another affidavit in rejoinder from
the appellants (November 24, 1965) that Jayaraman had . not
personally filed any affidavit and therefore it was not clear who
kad made the subjective determination regarding the matters disputed and the public purpose.
Raval then swore another affidavit (August, 1966) giving details of the urgency and stated that
he had considered the need for issuing the notification !.tnder s. 4
and that 'it was decided' to apply s. 17 ( 4).
He also stated that
the notification under s. 6 and the application of s. 17 (1 ) was
considered first by him and then by 1 ayararnan and they had
agreed to issue the notification and apply s. 17 ( 1 ) . Another
affidavit in rejoinder was filed during the hearing \December 2,
1966) that neither Raval nor Jayararnan had 'stated that they
had satisfied themselves about s. 17 ( 4) nor had Raval or Jayaraman stated that they were authorised by the State Government
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or by the Rules of Business or by any special order to form
the said opinion.
A number of affidavits were then filed.
The
Minister-in-Charge filed an affidavit in which he said :
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" ..... for the. purpose of urgently acquiring the
lands for the Capital Project, I had given instructions
initially to Shri S. M. Dudani and
subsequently to
Shri A. S. Gill after he became the Secretary of the
Revenue Department, and had made arrangements with
them, during their respective tenures as Secretaries of
the Revenue Department, to take necessary action for
urgent acquisition of lands for the Capital Project and
had also instructed them that they or the concerned
Deputy Secretaries or Under Secretaries in the Revenue
Department may, without bringing the cases to my personal notice and without referring such cases to me,
issue notifications under sections 4 and 6 of the Land
Acquisition Act and may apply urgency clause under
section 17 ( 1) and ( 4) of the said Act as the case may
be wherever it was possible to invoke tile urgency clause
according to law."
S. M. Dudani who was Secretary till April 2, 1965 and A. S. Gill
who followed him swore two affidavits. Their purport was almost
the same.
A. S. Gill said :
" ..... Shri
Utsavbhai
S. Parikh,
the Hon'ble
. Minister for the Revenue Department for the purpose
of acquiring lands urgently for the Capital Project had
given instructions to me and had made arrangements
with me to take necessary action for urgent acquisition
of lands for the Capital Project and had also instructed
me that myself or the concerned Deputy Secretaries or
the Under-Secretaries in 'the Revenue Department may,
without bringing the cases to his personal notice and.
without referring such cases to him, issue notifications
under sections 4 and 6 of the said Act anc\ may apply
urgency clause under sections 17 (1 ) and ( 4) of the
said Act, as the case may be, wherever it was possible
to invoke the urgency clause according to Jaw.
........... I had given instructions to the concerned Deputy Secretaries and the Under Secretaries
of the Revenue Department to take necessary actions
under sections 4 and 6 of the said Act and to apply the
urgency clause wherever it was possible according to
law."
The appellants then filed a last affidavit in rejoir.der denying the
power of the Minister to delegate by oral instructions his own
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[1968] 2 S.C.R·' 1'
power to the Secretary and questioned the sub-delegation to the
Deput::r and Under SecretariC!l.
. It would thus appear that the· controversy got enlarged as
time passed and Government undertook more and raore burden
although there was hardly any attempt by the appellants to support their assertions by mentioning any facts. The High Court
noticed in its judgment that there.was really nothing in the original affidavit supporting the petition which Government need
have answered and yet it allowed affidavits to be filed during the
hearing and even in the midst of the pronouncement of the judgment.
Each affidavit on the· side of Government itself enabled
the appellants to enlarge their allegations and to take up
new
stands. This unusual course appears to have been permitted
from a desire to be just and fair but was hardly proper and the
High Court ought really to have stemmed the flow of affidavits,
keeping the appellants to their burden and the Govemmeat to
its burden, if any.
The Governmer'. also did not leave the appellants to their burden which would have been heavy in view of the
presumptiln and the provisions of Art. 166(2)
already mentioned.
The High Court having before it allegations, counter allegations and denials dealt first with the legal side of the matter.
Then it readily accepted the affidavits on the side of Government.
lf it had reversed its approach it need not have embarked upon
(what was perhaps unnecessary) an analysis of the many principles on which onus is distributed between rival parties and the
tests on which subjective opinion as distinguished from an opinion
as to the existence of a fact, is held open to review in a court
of law.
As stated already there 1s a strong presupiption of regularity of official acts and added thereto is the prohibition contained in Art. 166 ( 2). Government was not called upon to
answer the kind of affidavit which was filed with the petition
because bare denial that Government had not formed an opinion
could not raise an issue.
Even if Government
under
advice
offered to disclose how the matter was dealt with, the issue did
not change and it was only this.
Whether any one at all formed
an opinion and if he did whether he had the necessary authority
to do so. Tne High Court having accepted the affidavits that
Raval and J ayaraman had fanned the necessary opinion, was
only required to see if they had the competence.
The High
Court after dealing with many matters held that. they had.
Mr. B. Sen has, therefore, very rightly confined himself to
this aspect of the case and has questioned the competence of
Raval and Jayaraman to act for the Government.
His contention is that the procedure followed
by the Minister-in-Charge
offended the Rule<; of Business and therefore the necessary sati,;-
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GIRDHARLAL v. GUJARAT (Hidayatullah, J.)
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faction or the opinion of Government was wanting in the case.
In support he has relied upon Emperor v. Shibnath Banerji(').
Mr. Sen's argument proceeds like 'this :
Under the Rules of Business (Rule 4) the business of Government is to be transacted in the Department specified in the
First Schedule and item No. 15 covers the topic of acquis!tion of
property and the principles on which compensation is to be deter- ·
mined and it is assigned to the Revenue Department.
Each
Departmerrt of the Secretariat consists of a Secretary to the Government (Rule 7) but the work may be divided between two or
more Secretaries.
The Minister-in-Charge is primarily responsible for the disposal of the business appertaining to the Department (Rule 10). Therefore on1f 'the Minister for Revenue could
decide questions.
Referring to the oral instructions said to have
been given by the Minister, Mr. Sen refers to the instructions
issned by the Governor under Rule 15 and draws attention to'
paragraph 3 of the instructions which reads :
"3. Except as otherwise provided in these Instructions, cases shall ordinarily be disposed of by, or under
the authority of the Minister-in-Charge, who may by
means of standing· orders, give such directions as he
thinks fit for the disposal of cases in the Department.
Copies of such standing orders shall be sent to the
Governor and the Chief Minister."
He contends that a geneml ins'truction of the type mentioned by
the Minister in his affidavit could on1y be. given as a standing
order of which a copy had to be sent to the Governor and the
Chief Minister and, therefore, the oral instructions had no validity in law.
He submits in the alternative that at least an order
in writing ought to have been passed.
Mr. S. V. Gup'te in reply contends that this overlooks the·
opening words of Rule 10 which are "without prejudice to the
provisions of rule 7," indicating that the business of land acquisition is to be transacted in the Revenue Department (Rule 4)
by the Secretary to the Department (Rule 7 read with Rule 10)
although the Minister is primarily responsible for the disposal of
the business.
He then draws attention to the provisions of Rule
13 where a Secretary is equated to Additional, Joint, Deputy,
Under and Assistant Secretaries for certain purposes and the definition of Secretary in paragraph ( 1 )(vii) which includes these
other functionaries for 'the purpose of the Instructions. Mr. Gupte
next reads with paragraph 3 the provisions of parag-aphs 4 and
5 which provide :
(I) LR. 72 I.A. 241.
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SUPIUIME OO!a T llEPOR TS
(1968] 2 S.C.R·
"4. Each Minister shall arrange with the Secretary
of tht: Department what matters or classes of matters
are to be brought to his personal notice."
"5. Except as otherwise provided in these Instructions cases shall be submitted by the Secretary in the
Department to which the case belongs to the Ministerin-charge."
·
Mr. Gupte contends that there is nothing in the Rules or Instructions that oral instructions, if clearly issued, cannot confer on the
Secretaries the power to make determinations and submits that
Standing Orders refer to all cases generally and oral instructions
can be issued in certain particular contingencies and this was done
as stated in the affidavit' of the Minister, A. S. Gill and S. M.
Dudani which have been accepted.
He contends that there is no
sub-delegation because Rule 7 (b) covers this case.
In our judgment the argument of Mr. Gupte is valid.
There
is nothing in the Rules or Instructions which prescribes that the
authority must be in writing or by Standing Orders.
Standing
Orders are necessary for the disposal of cases in 'the Department
(paragraph 3) and this applies to cases generally.
Paragraph
4, on the other hand, refers to."matters or classes of matters" and
that is not a "case" but a "matter" in a case.
The definition of
case in the Instructions is :
"Case includes the papers under consideration and
all previous papers and notes put in connection therrwith to enable the question raised to be disposed of',
but this definition is c"tcluded by the context.
Although ihc case
belongs to a Department [paragratih 2(i)), the word case
in
paragraph 3 obviously refers to the disposal of cases and not to
matters arising in a case regarding which the Minister may ar~a.1gc
with the Sccrclary whether they are to be brought to his personal
notice or not. The. matters here were application of s. 17 (I) and
( 4) to the acquisition of waste and arablP- lands and the Minister
could leave this matter to his Secretaries as he did.
For this
purpose Standing Orders were not only not necessary hut would
be inappropriate.
Reliance wa' placed upon the decision of the Orissa High
Court in ShayamaKhana Ray v. State(') that Rules 15 must prevail over the Instructions.
But lhat Rule itself provides that the
Ruic may be supplemented by Instruclions and the power so
conferred was available in paragraoh 4 to i:rovide that the
Minister may arrange with the Secretary of his Department what
II) A.I.R. 1952 Orissa 2JO.
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GIRDHARLAL v. GUJARAT (Hidayaiullah, J.)
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matters or classes of matters are to be brought to his personal
notice.
This dispenses wlth the taking of orders of the Minister
each time.
Mr. Sen then refers to the words of ss. 4, 6 and 17 ( 1) and
( 4) which are different.
In s. 4 the words are 'whenever it
a;ipears to the appropriate Government that land in any locality
is needed or is likely to be needed' while in s. 6 the words arc
'when the appropriate Govent.'llent is satisfied' and in s. 17 ( 4) the
words are 'in tl;ie opinion of the appropriate Government'. He contends that some difference must be made between them and when
sub~ss. ( 1) and ( 4) of s. 17 require, a direction from the appropriate Government the determination mus't be by the Minister himself. If the sections stood by themselves this a'.'gument would be
unanswerable but we have the Rules of Business which specifically
allow conferral of powers on Secretaries and the determination
of the Secretary becomes jie determination of Government.
Mr. Sen's reference to Emperor v. Shibnath Banerfi's case( 1 ) is
not apposite because the circumstances there were different. That
case arose from petitions under s. 491 of the Code of Criminal
Procedure seeking directions in the . nature of habeas corpus on
behalf of certain persons detained in pursuance of orders made
under Rule 26 of the Defence of India Rules 1939.