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TMI Blog1963 (11) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... perform the functions of a Collector), upon the appellant under s. 5A of the Act inviting objections to the acquisition of the land. The appellant filed objections to the proposed acquisition. The Additional Special Land Acquisition Officer submitted his report to the Commissioner, who issued a notification dated January 11, 1961, under s. 6(1) of the Land Acquisition Act, declaring that the land notified under the earlier notification was required for the public purpose specified in col. 4 of the schedule and that the Additional Special Land Acquisition Officer, Ahmedabad, was appointed under cl. (e) of s. 3 to perform the functions of the Collector for all proceedings to be taken in respect of the land and to take order under s. 7 of the Act for acquisition of the land. The appellant then moved the High Court of Gujarat under Arts. 226 and 227 of the Constitution for a writ of mandanius or other appropriate write setting aside the notifications dated September 1, 1960, and January 11, 1961, and the proceedings under s. 5A of the Land Acquisition Act,1 of 1894, held in respect of the land of the appellant and the decision of the Commissioner Baroda Division, and for a writ s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted for the purpose, to set out the boundaries by placing marks and cutting trenches etc. The expression appropriate Government is defined by cl. (ee) of s. 3 in relation to acquisition of land for the purposes of the Union, the Central Government, and in relation to acquisition of land for any other purposes, the State Government. Any person interested in any land notified under s. 4(1) may within thirty days after the issue of the notification object in writing to the acquisition of the land or of any land in the locality, as the case may be. The Collector must give to the objector an opportunity to be heard and after hearing such objection and making such further inquiry, if any, as he thinks necessary, he has to submit the case to the appropriate Government with a report containing his recommendations on the objections. The decision of the appropriate Government on the report is made final by sub-s. (2) of s. 5A. The expression Collector is defined in s. 3(c) as meaning the Collector of a district, and includes a Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under the Act. By s. 6 the appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in which the land in dispute is situate was part of the State of Bombay, but on May 1, 1960,-----called the appointed day-as a result of the reorganisation of the State of Bombay under the Bombay Reorganisation Act, 1960, out of the territory of that State, two States were carved out-the State of Maharashtra and the State of Gujarat, and the territory covering the Baroda Division was allotted to the State of Gujarat. To ensure a smooth bifurcation of the State of Bombay, provisions relating to the continuance in office of the officers in the same posts which they occupied before the appointed day, and maintaining the territorial extent of laws were enacted. Section 82 of the Bombay Reorganisation Act, 1960, enacted that every person who, immediately before the appointed day, is holding or discharging the duties of any post or office in connection with the affairs of the State of Bombay in any area which on that day falls within the State of Maharashtra or Gujarat shall, subject to an order by a competent authority, continue to hold the same post or office in that State and shall be deemed, as from that day, to have been duly appointed to the post or office by the Government of, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Land Acquisition Act. Support to this plea was sought to be derived from the division of part XI of the Constitution into Ch. 1 containing Arts. 245 to 255 dealing with distribution of legislative powers and Ch. 11 containing Arts. 256 to 261 dealing with administrative relations between the States , and it was submitted that Art. 258, occurring as it does in Ch. 11 of Part XI, must be deemed to deal with matters administrative or executive and not legislative. Founding the argument upon the title of Ch. 11 and the character of the two preceding Arts. 256 and 257 dealing with the exercise of the executive power of the State so as to ensure compliance with the laws made by Parliament, and in a manner so as not to impede or prejudice the exercise of the executive power of the Union which extends to the giving to the State Governments directions as may be necessary for that purpose, it was claimed that Art. 258 deals with the entrustment of executive functions and that entrustment of executive functions by notification issued by the President cannot amount to law, within the meaning of s. 87 of the Bombay Reorganisation Act. The plea about the placing of Art. 258 in Ch. 11 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the three recognised categories legislative, judicial and executive, may be placed in the category of miscellaneous functions. But it is now well settled that functions which do not fall strictly within the field legislative or judicial, fall in the residuary class and must be regarded as executive. In Halsbury s Laws of England, 3rd Edn. Vol. 7, Art. 409 p. 192 it is observed: Executive Functions are incapable of Comprehensive definition, for they are merely the residue of the functions of government after legislative and judicial functions have been taken away. They include, in addition to the execution of the laws, the maintenance of public order, the management of Crown property and nationalised industries and services, the direction of foreign policy, the conduct of military operations, and the provision or supervision of such services as education, public health, transport, and state assistance and insurance. Similarly in Wade and Phillips, Constitutional Law, 6th Edn, at p. 16 it is observed: It is customary to divide functions of government into three classes, legislative, executive (or administrative) and judicial. In Rai Sahib Ram Jawaya K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detail. For the purpose of this case it would serve no useful purpose to decide whether under Art. 258(1) by a Presidential notification only executive functions of the Central Government may be entrusted to the State or to an officer of the State. By the notification in question only the functions of the Central Government under the Land Acquisition Act 1 of 1894, in relation to acquisition of land for the purpose of the Union have been entrusted to the Commissioners of Divisions. The power exercisable by the appropriate Government under s. 55 of the Land Acquisition Act to frame Rules under the Act has not been entrusted to the Commissioner. Whether such a function can be entrusted does not call for examination in this case. An argument advanced at the Bar which proceeded upon an erroneous premise about the field in which Art. 258(1) operates may however be noticed. That clause enables the President to entrust to the State the functions which are vested in the Union, and which are exercisable by the President on behalf of the Union: it does not authorise the President to entrust to any other person or body the powers and functions with which he is by the express provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Union; (ii) entrustment of the function by the President to the State Government or an officer of the State Government; (iii) exercise of the function by the State or its officer, on behalf of the Union. By Art. 258(1) the President as the head of the Union is competent to entrust functions in relation to any matter to which the executive power of the Union extends to any State Government, or officer of that Government. These are functions of the Union and not of the President. There is no doubt that the investment of power or authority upon the President is part of the Constitution and has necessarily the force of law. There is however controversy between the parties about the true character of the entrustment of the functions by the President. The character of the exercise of the function so entrusted must depend upon the field in which it operates and its impact upon the citizens rights. The President is authorised by Art. 258(1) to entrust functions with which the Union Government is invested, provided the functions are in relation to any matter to which the executive power of the Union extends. By virtue of Art. 367, the General Clauses Act, 1897, app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes an enactment of the nature suggested by counsel for the appellant excluding the operation of the proviso to Art. 73(1). Articles 353, 360(3), 339(2), 256 and 257 on which reliance was placed, merely enact provisions in the Constitution for giving directions to the State Governments in respect of certain specified matters or purposes. The form in which these provisions are couched do not expressly provide that within the field of their operation Art. 73(1) proviso will not apply. The language used, on the other hand, supports the view that power is conferred upon the Union to do certain things falling within the limits of the executive power, even though normally the power in respect of that matter may be exercised by the State Legislature by virtue of the legislative entry to which it relates. It is therefore open to the President, subject to the proviso to cl. (1) of Art. 73, with the consent of the State Government, to entrust executive power of the Union relating to acquisition of land either to the State or any officers of the State. We are in this appeal not concerned to ascertain whether the exercise of powers entrusted to the State or its officers has the force of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 4 6 of the Land Acquisition Act, and to appoint the Collector, be exercised by an officer to be named by the appropriate Government. Issue of a notification by the appropriate Government designating the officer to exercise the powers would unquestionably have the force of law, within the meaning of s. 2(d). Instead of making detailed provisions and cataloging the entrustment of functions in the different statutes which may be entrusted to the authorities of the State by the exercise of legislative power, the Constitution has invested the President with authority to entrust the functions to the Government of the State or their officers. The effect of Art. 258(1) is merely to make a blanket provision enabling the President by notification to exercise the power which the Legislature could exercise by legislation, to entrust functions to the officers to be specified in that behalf by the President and subject to the conditions prescribed thereby. By the entrustment of powers under the statute, the notification merely authorises the State or an officer of the State in the circumstances and within the limits prescribed to exercise the specified functions. Effect of the Presiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent, after the enactment of the Constitution, to function as tile appropriate Government under the Minimum Wages Act and therefore all steps taken by the Chief Commissioner under the provisions of the Act including the issue of the final notification fixing the minimum rates of wages for the employment in the textile mills in the State of Ajmer was illegal and ultra vires. The question which therefore fell to be determined in the Edward Mills case([1955] 1 S.C.R. 735.) was whether the order made by the Central Government under s. 94(3) of the Government of India Act, 1935, could be regarded as law in force within the meaning of Art. 372 of the Constitution. It was urged that an order may fall within the definition of existing law but it cannot be included within the expression law in force in Art. 372 of the Constitution. Mukherjea J., speaking for the Court in that case observed that there was no distinction between the expression existing law used in Art. 366(1) and the expression law in force occurring in Art. 372 of the Constitution, that the words law in force as used in Art. 372 are wide enough to include not merely a legislative enactment but also a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which argument was advanced does not require much elaboration. By s. 5A of the Land Acquisition Act, power to hear objections has to be exercised by the Collector as defined in s. 2(c) of the Act. The power to hear objections is under the statute, not the power of the appropriate, Government, but of the Collector. The expression Collector as defined in the Act is either the Collector of a district or any officer specially appointed by the appropriate Government to perform the function of a Collector under the Act. The statute itself confers authority to appoint a Collector for the purposes of the Act by the appropriate Government, and the Commissioner acting in pursuance of the powers conferred upon him by Art. 258(1) appointed the Additional Special Land Acquisition Officer, Ahmedabad, as Collector for the purposes of s. 5A. In so appointing the Additional Special Land Acquisition Officer the Commissioner exercised the power which was statutorily vested in the appropriate Government. It may at once be observed that no materials have been placed before the Court by the appellant to support the contention which was at one stage faintly advanced that the proceedings of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector has exercised that power. The Commissioner exercising his authority entrusted to him merely appointed on behalf of the Central Government the Additional Land Acquisition Officer as the Collector and considered the report in pursuance of the functions entrusted to him under the notification issued by the President. In so acting he did not act in any manner inconsistent with the authority conferred, or which could in law be conferred, upon him. The second objection must also fail. In our view therefore the appeal fails and is dismissed with costs. WANCHOO J.- We regret we are unable to agree. This is an appeal on a certificate granted by the Gujarat High Court. The appellant is the owner in possession of Final Plot No. 686 of Ellis Bridge Town Planning Scheme No. 3 in Ahmedabad measuring 7,018 sq. yards. On September 1, 1960, a notification was issued under s. 4 of the Land Acquisition Act, No. 1 of 1894 (hereinafter referred to as the Act) by the Commissioner of Baroda acting under powers entrusted to him by an order of the President under Art. 258(1) of the Constitution. By this notification the Commissioner notified that 3,200 sq. yards out of this plot was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Reorganisation Act), the notification continued to have full force and effect and the Commissioner could act under the functions entrusted to him; (2) the Commissioner had authority in view of the notification under Art. 258(1) to appoint a Collector within the meaning of s. 3(c) of the Act and there was no question of any sub-delegation of delegated authority by the Commissioner,; and (3) the functions under s. 5-A of the Act are not quasijudicial but administrative. Even if they are quasijudicial, they are vested in the Collector or any officer specially appointed by the appropriate government to perform the functions of a Collector under the Act, and this is exactly what was done by the Commissioner. The High Court dismissed the petition holding that the notification of July 24, 1959, under Art. 258(1) of the Constitution had the force of law and was therefore saved under s. 87 of the Reorganisation Act. In consequence reading s. 87 with s. 82 of the Reorganisation Act, the Commissioner would have the power to carry on the functions entrusted to him by the notification of July 24, 1959. It further held that the Commissioner had the authority by virtue of the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority in, that State. This, it is urged, only means that the person holding the office of Commissioner immediately before the appointed day will continue to be a Commissioner for the purpose of the State of Gujarat and will be deemed to have been appointed to that office by the State of Gujarat from the appointed day. But s. 82 will not have the effect of the Commissioner continuing to have the functions entrusted to him by the notification of July 24, 1959, for the pre-condition to his retaining such functions, namely, the consent of the State of Gujarat, would be wanting. It is not disputed on behalf of the Union of India that if the notification dated July 24, 1959, has not the force of law and s. 87 of the Reorganisation Act does not apply to it will not survive after May 1, 1960, when the State of Gujarat came into existence. It is however contended on behalf of the respondents that Art. 258(1) contemplates entrustment not only of executive functions but of all functions, whether legislative or executive or quasijudicial, and that the order of July 24, 1959, has the force of law and would be saved under s. 87 of the Reorganisation Act. We must therefore proceed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the States an(-, , vests additional power in Parliament to make laws with respect to matters in all the Lists with respect to territories not included in a State. Article 247 gives power to Parliament by law to establish additional courts for certain purposes. Article 248 gives residuary powers of legislation to Parliament. Article 249 provides for power of Parliament to legislate with respect to matters in the State List in the national interest in certain contingencies. Article 250 gives power to Parliament to legislate with respect to any matter in the State List if a proclamation of emergency is in force. Article 251 provides for resolution of any inconsistency between the laws made by Parliament under Arts. 249 and 250 and the laws made by the legislatures of the States under Art. 246. Article 252 provides for powers of Parliament to legislate for two or more States by consent. Article 253 gives power to Parliament to legislate to give effect to international agreements. Article 254 provides for resolution of inconsistency between laws made by Parliament and laws made by the legislatures of States with respect to the Concurrent List. Article 255 makes certain procedural prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides for payment of certain sums. This clause in OUT opinion refers only to cl. (2), for there is no question of settlement of payment after the consent of the State Government has been obtained. If there is to be any payment for carrying out functions entrusted under Art. 258(1) it will be settled when consent is obtained. Article 258-A is the counterpart of Art. 258(1) and permits the Governor of a State with the consent of the Government of India, to entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the State extends. Article 260 gives power to the Government of India by agreement with the Government of any territory not being the territory of India to undertake any executive, legislative or judicial functions vested in the Government of such territory. This Article certainly refers to legislative, judicial and executive functions but they are referred to expressly and the Constitutionmakers did not content themselves with using only the word functions . Article 261 provides for full faith and credit to public acts, records and judicial proceedings. Clause (2) thereof l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions in relation to any matter to which the executive power of the Union extends; but we have to ask the question whether it was the intention of the Constitution-makers that such functions could be of any kind, whether legislative, executive or even quasi-judicial, if any, in view of the scheme and setting in which Art. 258(1) appears. It seems to us that when Art. 258(1) is giving power to the President to entrust his functions to the Government of a State or do its officers in relation to any matters to which the executive power of the Union extends, the intention is to entrust only executive functions and no other. The word functions even though it is not qualified by the word executive in Art. 258(1) must in our opinion take its colour from what follows and if that is so the functions to be entrusted must be of the same nature as the executive power of the Union. It is true that the words following the word functions describe the field within which the functions can be entrusted and this field is to be found in accordance with List I ordinarily; but it is in our opinion legitimate to bold that the words following the word functions when they delimit the field in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing results will follow. There are many provisions in the Constitution which give legislative power, delegated or otherwise, to the President and if the word functions in Art. 258(1) includes within it legislative functions and the words that follow the word functions only prescribe the field within which these functions may be entrusted i.e. ordinarily within the limit of List 1, and do not further delimit that the functions to be entrusted within this field are executive functions only, the result will be that even the legislative functions of the President, where they relate to this field, can be entrusted by him to the State Government or its officers. As an example take Art. 123. It gives power to President to promulgate Ordinances in certain circumstances, which have the same force and effect as an Act of Parliament. These Ordinances can ordinarily be made with respect to matters in List I and also in List III. Therefore if the functions which can be entrusted under Art. 258(1) can also be legislative, Art. 258 would be conferring power on the President to entrust his function of Ordinancemaking to the Government of a State or its officers with respect to matters in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be competent to confer on the President the power of the Legislature of the State to make laws and to authorise the President to delegate subject to such conditions as be may think fit to impose, the power so conferred upon any other authority to be specified by him in that behalf. It will be seen therefore that where it was intended by the Constitution that the legislative power of the President could be delegated by him to some other person, there is a specific provision in that behalf in the Constitution. It is difficult therefore to accept that Art. 258(1) provides for the entrustment of the legislative functions of the president, for example, with respect to matters contained in List I by a kind of side-wind to the State Government or to any of its officers. We are therefore of opinion that even though the word functions in Art. 258 is not qualified by the word executive , the effect of the words following the word functions in Art. 258(1) is two-fold, namely, to delimit the field within which the entrustment can take place, namely the field covered ordinarily by List I and also to delimit the nature of functions to be entrusted, namely, executive functions. We may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso. These two exceptions are: (i) where there is an express provision in the Constitution, and (ii) where any law made by Parliament provides otherwise. The contention on behalf of the appellant is that there is no law providing otherwise and there is no express provision in the Constitution by which the power of entrustment could be extended to a case of acquisition of land by the Union as the power to make laws in respect of acquisition and requisitioning is covered by entry 42 of List III. Therefore, it is urged that this being a matter relating to List 111, the executive power of the Union does not extend to it and therefore no order with respect to it can be made by the President under Art. 258(1). We do not think it necessary to express any opinion on this aspect of the matter in view of our decision on other points raised before us. This brings us to the main question involved in this appeal, namely, whether the notification dated July 24, 1959, is law to which s. 87 of the Reorganisation Act applies. The first contention of the appellant in this connection is that as Art. 258(1) deals with entrustment of executive functions, an order passed thereund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s essential to its welfare and which it is willing to enforce by the creation of a specific mechanism for securing compliance. It will be seen therefore whether law comes as a command of a sovereign body or as a custom or usage having the force of law, the basic concept is that it should consist of a body of rules which govern the conduct of persons forming the community in which it is enforced and which that community enforces through necessary machinery. It follows therefore that if a notification or order made by Government is to have the force of law, it must consist of a rule or body of rules regulating the course of conduct of a person or persons living in the community and further it should be enforceable by judicial or other processes created for the purpose. Let us see how this concept of law is satisfied in the present case taking into account the definition given in s. 2(d) of the Reorganisation Act. The essence of that definition is that an order or notification in order to be law must have the force of law. The expression force of law must be distinguished from the authority of law . Many orders issued by Government have the authority of law behind them b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within law as having the force of law satisfy this basic concept. The first term included in s. 2(d) is enactment. An enactment has necessarily the force of law because it is an expression of the legislative will and is expressly enacted as law by the legislature and would necessarily contain a body of rules which have to be obeyed by persons living in the particular community. The second term used in s. 2(d) is ordinance having the force of law. If an ordinance is passed, say under Art. 123 or Art. 213 of the Constitution, it stands exactly on the same footing as an enactment and would necessarily have the force of law. If it is another kind of ordinance, it can have the force of law if it lays down a binding rule of conduct and the body passing it has the authority of law to lay down such a binding rule of conduct. Such an ordinance would usually be subordinate legislation. The third term is regulation. A regulation may be a direct command of the legislature in which case it will stand on the same footing as an enactment. Examples of this kind of regulations are to be found in the old regulations passed by the Governor- General before 1857 under his law-making power, some of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law. Only such notifications have the force of law which are a species of subordinate legislation passed by a body having the authority to promulgate them and which lay down rules of conduct for persons in the community to obey. But there may be notifications which lay down no rule of conduct. For example, all appointments, and transfers of officers are notified through notifications and these are merely executive orders for the purpose of the information of public and do not lay down any rule of conduct to be followed by persons in the community. The last term is other instruments and these again may be of two kinds, like schemes. If they have the characteristic of subordinate legislation and contain a rule or body of rules to be followed by persons living in the community they will have the force of law and will be enforced by courts or other authorities. But they can also be merely executive in nature: for example, sale-deeds, mortgage deeds etc., are all instruments but have not the force of law. Similarly treaties between sovereign powers are also instruments but they have by themselves no force of law. That is why we find a specific provision in Art. 253 for legislation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of land for the purpose of the Union within the limits of the respective territorial jurisdiction of the said Commissioners subject to the same control by the Government of Bombay as is from time to time exercisable by that Government in relation to acquisition of land for the purpose of the State. In effect the notification appoints the Commissioners of Divisions to exercise the functions of the Central Government under the Act for acquisition of land for Union purposes. It lays down no rules of conduct for persons living in the community to follow, it merely entrusts the powers of the Central Government for certain purposes to the Commissioners of Divisions. It is true that the notification has the authority of law behind it, for it is made under cl. (1) of Art. 258 of the Constitution and as such if an order is passed by the Commissioner by virtue of the powers conferred on him by the notification that order will be recognised by courts. But there is no question of enforcement of this notification by courts, for no citizen can go and ask courts to enforce this notification. The force of law arises only when a notification lays down a rule of conduct for citizens to follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can even amount to the amendment of the law in connection with which the order has been made. No amendment to an enactment can be made except through the legislative process provided in the Constitution and Art. 258(1) does not provide for any legislative process for amendment of an enactment. It is true that the effect of the notification in this case is that the Commissioner of a Division can do what the Central Government can do under the Act but that does not mean that the definition of the appropriate Government in the Act is amended because of the order. We therefore reject this argument. It now remains to refer to certain cases which were cited in this behalf. The main case on which reliance has been placed on behalf of the respondents is The Edward Mills Co. Limited v. the State of Ajmer([1955] 1 S C.R. 735.). In that case this Court was dealing with an order made under s. 94(3) of the Government of India Act, 1935, and the question that arose was whether such an order was a law in force capable of adaptation. This Court held that an order passed under S. 94 (3) of the Government of India Act (which corresponded to Art. 239 of the Constitution) which dealt with the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is The State of Bombay v. F.N. Balsara([1951] S.C.R. 682.). That was clearly a case of subordinate legislation inasmuch as the order there passed was in pursuance of s. 139 of the Bombay Prohibition Act, No. 25 of 1949, which gave power to the Government by general or special order to exempt any intoxicant or class of intoxicants from the operation of any of the provisions of that Act. Such an order would clearly have the force of law being subordinate legislation and that was what was held in that case. Two other cases to which references may be made are : (1) King-Emperor v. AbdulHamid([1923] I.L.R. II Patna 134.) and Ramendrachandra Ray v. Emperor. [1931] I.L.R. LVIII Cal. 1303.In the first case the Superintendent of Police passedan order under s. 30 of the Police Act prohibiting processions and the question was whether it was law. The Patna High Court held it was law and we think rightly. The order was passed by the Superintendent of Police under authority vested in him by the Police Act and it prescribed a course of conduct to be followed by persons living within his police jurisdiction, disobedience of which was punishable. It could therefore be enforced b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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