# STATE 01<' BOMBAY (MAHARASHTRA) v. SHIVBALAK GOURISHANKER DUBE & OTHERS

- **Citation:** [1965] 1 S.C.R. 211
- **Court:** Supreme Court of India
- **Decided:** 1964-08-31
- **Case number:** Civil Appeal No. 269 of 1962
- **Bench:** P. B. uAJENDRAGM>KAR, J. C. Shah, N. Rajagopala B Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-01-bombay-maharashtra-v-shivbalak-gourishanker-dube-others-3351
- **Pages:** 9

## Headnote

c
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F
. Delegation of power-Whether includes delegation of dutieJ nuessary
jor exercU~ of th~ power-Bombay Tenancy ti.nd .Agricultural Lill~·$ Act,
1948 (Bom. 67 of 1948), .s. 65, 83.
A notice was served by the appellant-State inviting the attention of Ille
respondents to the fact that the agricultural lands of which they were tile
owners had remained fallow, and intimating to them that the appellant
would resume management of the said lands under s. 65 of the Bombay
Tenancy and Agricultural Laws Act unless the respondents took steps to
bring them under cultivation in the following agricultural seaoon. It appears
that later, an enquiry was made ·under the orders of the Deputy Collector
as a result of which he passed an orger under s. 65 directing that the lands
should 6e resumed by the State for cultivation.
Having failed in their
efforts to get the order of the Deputy Collector altered, the respondents
filed a suit for a declaration that the order passed by the Deputy CoHeclor
was illegal and void and that it could not dispossess them of the lands which
belonged to them. The suit was dismissed. The respondents appealed to
the High Court and it found that on a fair and reasonable construction of
s. ,65(1) read with s. 83, the appellant could _delegate its powers prescribed by s. 65 ( 1), but could not delegate its duty inciaental tc the
exercise of the said power, and as it reversed the decree passed by the
trial Court.
On appeal by special leave :
HELD: (i) Section 83 authorises the delegation not only of tile
powers mentioned by it, but also the duties or functions which are incidental to the existence of the powers and are integrally connected with lbea
[216 A-BJ
Edward Liso Mungoni v. Attorney-General of Northern Rhodala,
[1960) 2 W.L.R. 389. referred to.
(ii) Section 65(1)· does not require that the Deputy Collector -t
himself go to the agncultural fields and enquire on the spot whether tlley
were lying fallow.
He tnay, if he so desires, record evidence himlelf,
or the rccorrling of the evidence and the actual inspection on the opot GD
be left to some subordinate officer. The report of such local inspectioll
and the record of the evidence collected in that behalf would be forwarded
to the Deputy Collector, and that would be the material on which he
would hold the enquiry himself.
This procedure does not involn •Y
G
delegation at all.
[217 H; 218 B; 217 0-H].
Alllntlram v. Ministtr of Agriculture and Fisheries, [1948] 1 AIL E.R.
780, distinguished.
H
Nathublwi Gandabhai Desai v. State of Bombay & OrJ. I.Lil. [1955)
Bom. 407, referred to.
CJ:vu, APPELLATE JURISDICTION : Civil Appeal No. 269 of
1962.
.
,
Appeal by special leave from the judgment and decree dated
October 5, 1959 of the Bombay High Court in First Appeal :No.
712 of 1955.
212
SUPREME COURT REPORTS
[1%5) l S.C.R
S. G. Patwardhan and B.R.G.K. Achar, for the appellant.
G. S. Pathak and Naunit Lal, for the respondents.

## Text

A
STATE 01<' BOMBAY (MAHARASHTRA)
v.
SHIVBALAK GOURISHANKER DUBE & OTHERS
August 31, 1964
21 1
(P. B. uAJENDRAGM>KAR, C.J., J. C. SHAH AND N. RAJAGOPALA
B
AYYANGAR JJ.)
c
D
E
F
. Delegation of power-Whether includes delegation of dutieJ nuessary
jor exercU~ of th~ power-Bombay Tenancy ti.nd .Agricultural Lill~·$ Act,
1948 (Bom. 67 of 1948), .s. 65, 83.
A notice was served by the appellant-State inviting the attention of Ille
respondents to the fact that the agricultural lands of which they were tile
owners had remained fallow, and intimating to them that the appellant
would resume management of the said lands under s. 65 of the Bombay
Tenancy and Agricultural Laws Act unless the respondents took steps to
bring them under cultivation in the following agricultural seaoon. It appears
that later, an enquiry was made ·under the orders of the Deputy Collector
as a result of which he passed an orger under s. 65 directing that the lands
should 6e resumed by the State for cultivation.
Having failed in their
efforts to get the order of the Deputy Collector altered, the respondents
filed a suit for a declaration that the order passed by the Deputy CoHeclor
was illegal and void and that it could not dispossess them of the lands which
belonged to them. The suit was dismissed. The respondents appealed to
the High Court and it found that on a fair and reasonable construction of
s. ,65(1) read with s. 83, the appellant could _delegate its powers prescribed by s. 65 ( 1), but could not delegate its duty inciaental tc the
exercise of the said power, and as it reversed the decree passed by the
trial Court.
On appeal by special leave :
HELD: (i) Section 83 authorises the delegation not only of tile
powers mentioned by it, but also the duties or functions which are incidental to the existence of the powers and are integrally connected with lbea
[216 A-BJ
Edward Liso Mungoni v. Attorney-General of Northern Rhodala,
[1960) 2 W.L.R. 389. referred to.
(ii) Section 65(1)· does not require that the Deputy Collector -t
himself go to the agncultural fields and enquire on the spot whether tlley
were lying fallow.
He tnay, if he so desires, record evidence himlelf,
or the rccorrling of the evidence and the actual inspection on the opot GD
be left to some subordinate officer. The report of such local inspectioll
and the record of the evidence collected in that behalf would be forwarded
to the Deputy Collector, and that would be the material on which he
would hold the enquiry himself.
This procedure does not involn •Y
G
delegation at all.
[217 H; 218 B; 217 0-H].
Alllntlram v. Ministtr of Agriculture and Fisheries, [1948] 1 AIL E.R.
780, distinguished.
H
Nathublwi Gandabhai Desai v. State of Bombay & OrJ. I.Lil. [1955)
Bom. 407, referred to.
CJ:vu, APPELLATE JURISDICTION : Civil Appeal No. 269 of
1962.
.
,
Appeal by special leave from the judgment and decree dated
October 5, 1959 of the Bombay High Court in First Appeal :No.
712 of 1955.
212
SUPREME COURT REPORTS
[1%5) l S.C.R
S. G. Patwardhan and B.R.G.K. Achar, for the appellant.
G. S. Pathak and Naunit Lal, for the respondents.
The Judgment of the Court was delivered by
Gajelldragadkar C. J.
What is the scope and effect of
the provisions contained in section 65 read with s. 83 of the
Bombay Tenancy and Agricultural Lands Act, 1948 (No. 67 of
1948) (hereinafter called the Act), that is the short question
which arises for our decision in this appeal.
The four rcspon·
dents are the owner of certain agricultural lands in Deokhope
A
' ..
i.i Taluka Palghar in Maharashtra.
On the 23rd June, 1951, a
notice was served by the appellant, State of Bombay (now MahaC
rashtra), inviting the attention of the respondents to the fact that
the agricultural lands of w.hich they were the owner6 had remained
fallow since I 948-49, and intimating to them that the appellant
State would resume management of the said lands under s. 65 of
the Act unless the re6pondents took steps to bring them under
cultintion in the following agricultural season. The respondoots
were told that in ca.o;e they wanted to bring the said lands into
cultivJltion, they should send intimation of their intention to do
SC!l within JS days from the d_J!le of the receipt of the notice.
It'
appears that later, an enquiry was made under the orders of the
Dy. Collector as a result of which on the 30th. December, 1951,
he passed an order under s. 65 directing that the lands should
be Dl:l>umed by the Government
for
cultivation.
Thereafter,
repAlSelltations were made by the respondents to the Dy. Collector
as a result of which about 8 acres and 30 ghunthas of land
were released on the ground that the owners had taken steps tq
cultivate that portion of the lands in pursuance of the direction
gDien to diem by the earlier notice.
The order passed by the
Dy. Collector in respect
of other lands remained unalfectcd.
T.her.eaftec, respondent No. I approached the Collector by his
application
dated 24th
March, 1952.
This app'ication was.
hOWCYer, Tejectcd.
The respondents then moved the Revenue
D.epartmcot, but that effort also failed.
That is why the present
suit was filed by them on the 23rd December, 1953 for a declaration that the order passed by the Dy. Collector on the 30th
December, 1951 was illegal and void. and that it could not dispossess them _of the lands which belonged to them.
As a consequence of the declaration thus claimed by them, the respondents a~ked for a decree for possession and me;ne profits against
the appellant. ·
'The .appellant disputed the respondents' claim.
It
urged
that the suit as framed was barred under s. 63 (I ) and s. 85 of
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STATE v. SlllVBALAK (Gajendragadkar c. J.)
213
A the Act.
On the merits, the appellant challenged the correctness of the allegations made by the respondents. It was averred by the appellant that the requisite enquiry had been duly
and properly made and . the · impunged order was passed
in
accordance with the relevant provisions of the Act. According
to the appellant, civil court has no jurisdiction to consider the
B
propriety or reasonableness of the conclusion reached by the Dy.
t:.~·
Collector before he passed the impunged oi:der. ·
The learned trial Judge who framed appropriate issues on
these pleadings, in the ml!in upheld the contentions raised by the
appellant. In his opinion, the present suit was barred by sections
65 ( 1) and 85 of the Act. He also held that the declaration made ·
by the Dy. Collector was not null an.d .void.. The plea raised by
the respondents against the validity of the statutory provisions
contained.in sections. 65 & 66. of the Act was.reje<;ted by.him,
because he thought that. the said sections did n.ot c.ontravene the
provisions of Articles 19 and 31 of the. Consti!Jnion.. The leamD ed Judge also found that the grievance ma4e. by the respondents
against the propriety or reasonableness of the. enquiry made prior
to the passing of the impunged order was not justified.
In the
result, the respondent's suit was dismissed.
The respondents then farried the matter before the High
Court by an appeal, and on their 'behalf tliree contentions were
E
raised · before the High Court. It was first argued that the
lands in respect of which the impunged declaration was made
were not lands as defined by the Act, and so, the relevant provisions of the Act were inapplicable .. It was then urged that
before the Government could exercise its powers under s. 65 of
. F the Act, a duty was cast on it to be satisfied that the lands had
remained uncultivated for a period of two years before · their
management wa5 assumed; and this condition had not been satisfied, because delegation by the State Government to subordinate.
officers of its duty to satisfy itself, or its power. to ma.ke the declaration, was not justified in Jaw.
It was also contended_ that
G since the satisfaction had to be by the authority who was. competent to make the declaration, he cowd not delegate any part of
his function and. duty in· that behalf and the said authority had
to hold the enquiry himself.
H
The High Court has upheld the second of these contentions.
It has found that on a fair and reasonable construction of s. 65 ( 1)
read with s. 83, the appellant could delegate its powers prescribed by s. 65 ( 1), but could not delegate its duty incidental to
the exercise of the said power.
That is why the decree passed
214
SUPREME 'coURT REPORTS
[I 965] 1 s.c.R
by the trial Court has been reversed Oil this ground and the
A
respondents' su/it has bleen decreed.
Consistently
with·
thi~ -
decision, an appropriate order· has been passed in regard to the
delivery of possession and the payment of. mesne profits
as
d aimed by the respondents.
It is againSt this decree that the
appellant has come to this Court by special leave; and tho only
point which is raised on its behalf by Mr. Patwardhan is that
B
the view taken by the High Court ·in regard to the scope and
effect of the provisions contained in s. 65 ( 1) read with s. 83 is
not well-foundC?d.
Section 65 ( 1) reads thus :-
"If it appears to the State Government that for any two
consecutive years, any land bas remained uncultivated or the full and efficient use of thC land ltas
not been made for the
purpose of agriculture,
through the defauJt of the holdl'r or any other cause;
whatsoever not beyond his .control the State Government may, after making. such enquiry as it thinks
fit, declare that the .management of such land shall
be nssumed.
The deClnratiO(l so made shall
be
conclusive."
A long with this section. it is neccssar)l to refer to s. 83 which
reads thus:-
'
"The State Governnient may, subject to such restrictions
and conditions as it may impose, by notification in
the Official Gazette, delegate to any of its officers
not below the rank of an Assistant or Deputy
Collector, all or any of the powers conferred on it
by this Act."
The High Court appears to have taken the view that though it was
competent to the State Government to delegate its i>owers under
s. 65 (1) ,. it could not delegate its duty· or obligation to make an
enquiry as a result of which the declaration in question can be
made. The State Government, says the High Co1¥"!, can exercise
its authority to make a declaration and this authority or power can
be delegated under s. 83; but before such authority or power can
be exercised, there is an obligation imposed on'.the State Governmc;nt to make an enquiry as to whether the agriciiltural land in
question has remained uncultivated or fallow for the period prcsc ribed by the statute, and tho obligation or duty to hold such an
enquiry which is distinct and separate from the pow(\r or authority
to make a declaration consequent upon the enqui'r, cannot be
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STATE v. SH!VBALAK (Gajendragadkar c. !.)
21 s:
delegated under s. 83. It is common ground that the enquiry was
not made by the State Government and if the· view taken by the
High Court is right that the obligation or duty to hold the enquiry
cannot be delegated, then the impugned declaration would be open
to attack: because it had not been preceded by a proper enquiry.
Mr. Patwardhan contends that the view taken by the High Court
is plainly erroneous and we are satisfied that this contention is
well-founded.
Sect.ion 83 in terms authorise!; delegation by the State Government to any of its officers of the specified status and the delegation
can be in respect of all or any of the powers conferred on the
State Government by the provisions of the Act.
Now, it seems
to us that the authority to delegate all or any of the powers w!,lich
is expressly conferred on the State Government by s. 8 3 would be
rendered almost meaningless if the duty to hold an enquiry as a
co_ndition precedent for the exercise of the said authority cannot
be delegated. In the context, the power which can be delegated
is inseparable from the enquiry which must precede the exercise
of the power, and so, in order to make s. 83 effective it is necessary to hold that the delegation of the power authorised by the
said section must necessarily involve the delegation of the discharge of obligations or functions which are necessary for
the
exercise of the said power.
If the view taken by the High Court is right it would mean
that whereas the State Government can authorise any of the
officers belonging to the specified class to exercise its powers ·
UBder s. 65 ( 1), it must hold the preliminary enquiry itself without delegating the authority to hold such an enquiry to any
ol!icer.
It is hardly necessary to emphasise that this position is
so plainly illogical that it would be unreasonable to recognise the
validity of the authority to confer powers while insisting that the
conditions precedent for the exercise of the powers are of such a
separate and distinct character that in order to satisfy the said
conditions, the required enquiry must be held not by any delegate
of the State Government but by the State Government itself. In
coming to the conclusion that the duty, as distinct from the power,
. cannot be delegated, the High Court was ·apparently influenced
by the fact that there would be no appeal against the enquiry
and the conclusion reached at such an enquiry.
We do
not
propose to express any opinion on this part of the reasoning
adopted by the High Court; that will depend upon the construction of s. 86 of the Act.
But whatever may be the position in
respect of the competence of an appeal, we are satisfied that on
216
>L l'RLME CUvKT Ri-l'Uli.l~
[ 1905] l S.C.R.
a fair and reasonable construction of s. 83 it must be held to
authorise the delegation not only of the powers mentioned by it,
but also
of duties or functions which are incidental to
tb,e
exercise of the powers and arc integrally connected with than.
In this connection, we may usefully refer to the decision of
the Privy Council iii Edward Liso Mungoni v. Attorney-General
of Northern Rhodesia('). In that case, in dealing with a similar
question under regulation 16( I) of the Emergency Powers Regulatinns, 1956 of Northern Rhodesia, made by ~
Aeling Govornor
of Northern Rhodesia under
bis statutory powers,
the
Privy
Council has held that the power .and the duty UBdu reg. 16(1)
were so interwoven that it was not possible to split the one from
the other so as to put the duty on one person and the power in
anoiher; the regulation contained not so mucil a duty, hut ratller
a power coupled with a du.ty, and be who exercised the power
bad to carry out the duty.
In the result, the Pcivy Couacil 'IOOk
the view that in del.egatiag his funoliions uoder reg. 16( J) the
Governor could <lelegate both the po.wer and ii11t¥ t.olJO!her to
one and the same person-he could not delegate the power to
another and mp tlle duty to himself. lt is not difficult to realise
what anomalous consequmces would fullow if it is held that ~
power can be delegated, but not t~ .duty to OOW IJr.e incideo;tal
enquiry which alone can lead to the ei;erci&c ;;it the power. In
subs!aJ!ce, the view taken by the High Court would make
the
authority to delegate the power wholly meaningless.
In .fairness,
we ought to add that Mr. Pathak who appeared for the respoadents did not seek to support this part of the
High
Court's
decision.
A
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It appears that a result of the decision of the High Court
F
in tru: present case, the Maharashtra Legislature thought it
prudent to make the necessary amendment in s. 83 of the Act.
Section 29 (a) of the Amending Act provides that for the words
"powers conferred" the words "powers conferred or duties imposed" shall be and shall be deemed to have been substitnted
on the 31st day of October, 1949; and accordingly, the delegation or the purported delegation by the State Government under
s. 83 of any duty imposed shall (notwithstanding the judgment,
decree or order of any Court) be deemed always to have been
valid, and the dischai:ge of any such duty by any officer shall for
all purposes be valid and effective 1111d shall not be called in question in any Court on the ground only that the State GoYcrnment
had no power to delegate the duty; and clause (b) provides that
(I) (1960) 2 W.L.R. 389.
G
H
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STATE v. SHIVBALAK ( Gajendragadkar c. ]. )
217
A
to the marginal note the words "an4 dtnies" shall be added.
It is
not surprising that in view of the sesioas OOil!iet1.1amces which
would have inevitably followed if the judgment under appeal .had
remained unchanged, the legislature thought it necessary to make
a suitable amendment in order t.o avoid any inten:uption in the
peaceful and smooth WOl!king of the relevant Ji>fOvisM!ns {){ the
B
Act.
Realising the infirmity in the vitw taken by the High Court,
Mr, Pathak attempted to suppon the decisfon of' th~ High Court
ou another ground.
He argued that since lihe enquiry was made
by the Talathi and the Mamlatdar under s. 65 and not by the Dy.
C
Collector, the declaration made by the Dy. Collector was invalid.
In other words, the argument is that the State Government may
have validly delegated its powers under s. 65 ( 1) to the Dy.
Collector, but the Dy. Collector who is a delegate of the State
Government cannot, in turn, delega•te a part of his power or authority to a subordinate of his own, and tfu!t is what he has done in
D
the present case. 'Ibis argument proceeds orr the basis that in
exercising his powers under s. 65(1), the Dy. CoUectormust himself hcifd the enquiry and cannot delegate the function of holding
such an enquiry to any other subordinate revenue officer.
There
is no doubt that a delegate who has received the authority from
the principal cannot, in turn, delegate his own authority to a deleE
gate of his own, but there is hardly any question of delegation by
a delegate in the present case.
All that s. 65 ( 1) requires is that
tile State Government and therefore its delegate may after making
such enquiry as it thinks fit, declare that tile management of the
land shaTI be resumed.
Tn other words. in what form the enquiry
should be hdd is a matter left entirely in the discretion of the
F
State Government or its delegate.
All that the Dy. Collector has
done in the present case is to direct his subordinate officers
to
collect material relevant to the purpose of the enquiry.
The Talathi went on the spot and ascertained as to whether the respondents' lands were lying fallow for
the reqnisite
period. He
•ubmitted fils report to the Mamlatdar.
The Mamlatdar
in
G
tum made his report to the Dy. Collector.
In other words, all
that the Dy. Collector has done is to collect tile relevant material, so that he can enq,uire into the question as to whether th!)
lands are lying fallow or not.
This procedure does not, in onr
opinion. involve the question
of any detegation
at all.
The·
fotm of tlie ertqairy and its mode are entirely in the discretion
H
of the Dy. Collector.
Section fiS{ 1 J ~
not require that the
Dy. CoHeclOF must li!imsdf go to the agrict1ltttral fielGs and
enquire on the spot whether they are lying fallow.
He may, if
218
SUPREME COURT REPORTS
[ 1965) I S.C.R.
he so desires, reoord evidence himself, or the recording of the
evidence and the actual inspection on the spot can be left to
some subordinate officer.
The report of such local inspection
and the record of the evidence collected in that behalf would
be forwarded to the Dy. Collector, and that would be the material on which he would hold the enquiry himself.
The enquiry
is thus held by the Dy. Collector, though the mechanical wo~k
of collecting material has been entrusted to a subordinate revenue officer. In such a case, we do not see h<?w the principle
that a delegate cannot delegate comes into operation.
In support of his argument, Mr. Pathak has relied on
a
decision of the Kings Bench Division
in
Allingham and am.
v. Minister of Agriculture and Fisheries(').
In that case, the
Court held that on the principle of delegatus non potest delcgare, the Committee exercising its powers under
reg.
62( 1)
coold not delegate its powers to detertnine the land to be cultivated to its officers and, thc~orc, the notice issued in that
behalf was ineffective and non-compliance with it was not
an
oflenoe.
It, however, appears that the War Agricultural Committee far the County did appoint the Biggleswadc district
Committee as a sub-committee to act under the instructions of
the executive committee and to make recommendations to the
executive committee.
Apparently, they made some recommendations to the executive officer and the executive officer
accordingly made the order.
On these facts, Lord Goddard,
C.J ., observed that he could find nothing in the regulations o_r the
statute which enabled the executive officer to make the order. The
appellants had contended before the Court that they were entitled
to have the decision of the executive committee and no one else
on the matter, and this contention was upheld on the facts of
that case.
We do not see how this case can assist Mr. Pathak's
argument in the appeal before us, because there has been no delegation to hold an enquiry as such.
What the Dy. Collector has
done in the present proceedings is not to delegate his authority
to hold an enquiry, but to get the material necessary for ·the
enquiry collected by his subordinate officers.
After the material
was thus col!ecteQ, he examined the material himself. held the
enquiry and came to conclusion that the lands had
remained
fallow and uncultivated for the requisite period.
We are, therefore, satisfied that the English decision on
which Mr. Pathak
relies does not assist him in the preseM case.
This contention appears to have been raised before the High
(I) [1948) I All E.R. 780.
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STATE v. SHIVBALAK (Gajendragadkar C.J.)
219
A Court and has been rejected by it and, we think, rightly. In fact,
in Nathubhai Gandabhai Desai v. The State of Bombay and
Ors.( 1 ), a similar contention was raised before the High Court
and had been rejected by it. In that case, the High Court has
held that inasmuch .as the Legislature has left it entirely to the
discretion of the State Government or the delegated authority to
B hold such enquiry as it thinks proper, .if an enquiry is held the
Court cannot consider as to whether the enquiry was a proper
one or whether a better enquiry would not have yielded better
results. This view has been consistently followed in the Bombay
High Court and we see no reason to doubt its correctness.
C
In the result, the appeal succeeds, the decree passed by the
High Court is set aside and that of the trial Court restored. There
would be no order as to costs throughout.
Appeal allowed.·
(I) I.L.R. (1955] Bom. 407.