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TMI Blog2020 (2) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... ns conferring of an authority to do things which otherwise that person would have to do himself . In the impugned notification it has been stated that the functions delegated shall be under the overall supervision of the Commissioner. When the Commissioner stated that his functions were delegated subject to his overall supervision, it did not mean or should not be construed as if he reserved to himself the right to intervene to impose his own decision upon his delegate. The words in the last part of the impugned notification would mean that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action. Once the powers are delegated for the purpose of Section 69 of the Act, the subjective satisfaction, or rather, the reasonable belief should be that of the delegated authority The principle is: devolving power is permitted in the cases where the nature, scope, and purpose of the power in legislation means that it is unlikely that the Parliament intended that the power is to be exercised personally, and the only practical way the power can be exercised is by the officers who are responsible to the person (who has the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other and further orders as the Hon'ble Court deems just and expedient. (e) To provide for the cost of this petition to the petitioner." 4. The facts giving rise to the present writ-application may be summarised as under : 5. It is the case of the writ-applicant that his son, namely Paresh Nathalal Chauhan, is a proprietor of a proprietary concern running in the name of Lancer Enterprise. The proprietary firm is situated at Vrundavan Estate, Ramol, Ahmedabad. 6. According to the writ-applicant, his son had rented the factory premises including the machines of the proprietary concern to one Mr.Nipun Patel for the purpose of manufacturing miscellaneous articles of plastics on job work basis. Few officers from the office of the Commissioner of State Tax visited the residential premises of the writ-applicant on 11th October 2019 and inquired about the whereabouts of his son. It is alleged that the officers harassed the family by their presence in the flat for almost a period of one week. In view of the aforesaid, a Special Civil Application No.18463 of 2019 came to be filed in this High Court with the following prayers : "(A) To issue a writ of mandamus and/or writ of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officials of the respondents from the petitioner's residential premises being Flat No.104, Aryavrat Heights, Prernatirth Derasar Road, Satellite, Ahmedabad. (E) To pass any other and further orders in the interest of the petitioner and in the interest of justice on such terms and conditions as may be deemed fit and proper to this Hon'ble Court. (F) To provide for the costs of this petition." 7. In the aforesaid writ-application, a Coordinate Bench of this Court passed the following order, dated 25th October 2019 : "1. Mr. Chetan Pandya, learned advocate for the petitioner has tendered an affidavit of Nathalal Maganlal Chauhan, the father of the petitioner. The same is taken on record. 2. The learned Assistant Government Pleader has submitted a confidential report of the proceedings carried out by the respondents at the premises of the petitioner pursuant to the authorisation issued in favour of the second respondent under sub-section (2) of section 67 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as "the CGST Act"). 3. This court has perused the report in its entirety. A perusal of the report reveals that the concerned office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise, has reasons to believe that any goods liable to confiscation or any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under this Act, are secreted in any place, he may authorise in writing any other officer of central tax to search and seize or may himself search and seize such goods, documents or books or things: Provided that where it is not practicable to seize any such goods, the proper officer, or any officer authorised by him, may serve on the owner or the custodian of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer: Provided further that the documents or books or things so seized shall be retained by such officer only for so long as may be necessary for their examination and for any inquiry or proceedings under this Act. (3) The documents, books or things referred to in subsection (2) or any other documents, books or things produced by a taxable person or any other person, which have not been relied upon for the issue of notice under this Act or the rules made thereunder, shall be returned to such person within a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that sub-section (5) of section 165 of the said Code shall have effect as if for the word "Magistrate", wherever it occurs, the word "Commissioner" were substituted. (11) Where the proper officer has reasons to believe that any person has evaded or is attempting to evade the payment of any tax, he may, for reasons to be recorded in writing, seize the accounts, registers or documents of such person produced before him and shall grant a receipt for the same, and shall retain the same for so long as may be necessary in connection with any proceedings under this Act or the rules made thereunder for prosecution. (12) The Commissioner or an officer authorised by him may cause purchase of any goods or services or both by any person authorised by him from the business premises of any taxable person, to check the issue of tax invoices or bills of supply by such taxable person, and on return of goods so purchased by such officer, such taxable person or any person in charge of the business premises shall refund the amount so paid towards the goods after cancelling any tax invoice or bill of supply issued earlier. " 5. Thus, sub-section (2) of section 67 of the CGST Act empowers th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dful to ensure that such incidents are not repeated. " 8. Ultimately, on 30th December 2019, the son of the writ-applicant came to be arrested by the respondent no.4 in exercise of power under Section 69 of the Central Goods and Services Tax Act, 2017 (for short, 'the Act 2017'). The arrest was on the reasonable belief that the son of the writ-applicant has committed offence under Section 132 of the Act 2017. 9. The son of the writ-applicant came to be produced before the Chief Metropolitan Magistrate at Ahmedabad who, in turn, remanded the son of the writ-applicant to the judicial custody. 10. The writ-applicant being the father, whose son has been arrested by the respondent no.4, is here before this Court questioning the legality and validity of the Notification No.EST/1/Jurisdiction/B.2168 dated 5th July 2017, by which the Commissioner of State Tax has delegated all his powers to the Special Commissioner of State Tax and the Additional Commissioners of State Tax. SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANT : 11. The principal argument of Mr.Chetan Pandya, the learned counsel appearing for the writ-applicant, is that the Commissioner of State Tax could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a drew a distinction between a particular power to be exercised and power to be exercised based on the reasonable belief of the authority. 14. Mr.Pandya further pointed out that the impugned Notification is in direct conflict with the Circular : 49 dated (Flyer No.) dated 1st January 2018 issued by the department. Mr.Pandya, in support of his submissions, has placed reliance on the following case-law : (1) Valerius Industries v. Union of India (Special Civil Application No.13132 of 2019, decided on 28th August 2019) (2) Deep Suresh Gadhecha v. State of Gujarat and others (Special Civil Application No.10436 of 2019, decided on 16th December 2019) 15. In such circumstances referred to above, Mr.Pandya prays that there being merit in his writ-application, the same be allowed and the impugned Notification be quashed. 16. On the other hand, this writ-application has been vehemently opposed by Mr.Kamal B.Trivedi, the learned Advocate General, appearing for the State respondents. Mr.Trivedi would submit that the challenge to the legality and validity of the impugned Notification is without any basis and devoid of any merit. Mr.Trivedi would submit that Section 5(3) of the GGST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 174 of the Indian Penal Code for non-compliance of summons, with the Additional Chief Metropolitan Magistrate, Ahmedabad being Criminal Case No.104117 of 2019 by the respondent authorities. In this regard, the competent Court was pleased to issue a bailable warrant upon the son of the present Petitioner and accordingly, the son of the present Petitioner reported before the competent Court on 30.12.2019. Thereafter, the son of the present Petitioner came to be arrested by the respondent authorities. 6. Thereafter, the present Petitioner preferred the present writ petition before this Hon'ble Court on the ground that the son of the present Petitioner could not be arrested as the authorization was issued by the Additional Commissioner of State Tax in exercise of powers as conferred under Section 69 of the GGST Act. According to the Petitioner, the said powers are required to be exercised only by the Commissioner. In this regard, the attention of this Hon'ble Court is drawn to the provisions as contained in sub-section 3 of section 5 of the GGST Act, that categorically empowers the Commissioner to delegate his powers to the Subordinate officers with conditions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrespective of the circumstances prevailing, it would only the Commissioner to do all the acts contemplated under the Act. In this regard, it is submitted that as far as the GGST Act is concerned, there is only one post of Chief Commissioner for the entire State of Gujarat. Thus, it is virtually impossible for one person to do all the acts contemplated under the Act by a single person. Thus, with a view to safeguard the revenue, as well as, to take quick action and without taking any time for undertaking procedural approvals, the legislature has consciously empowered the Commissioner to delegate his powers to any other subordinate to him, which will allow the department to take quick necessary actions, depending upon the prevailing circumstances. 9. It is further submitted in the State of Gujarat, there is only one position of Special Commissioner for the entire State, which is generally held by an officer from Indian Administrative Service (IAS) cadre or Indian Revenue Service (IRS) cadre. Moreover, the position of Additional Commissioner is held by a person from Gujarat Administrative Service (GAS). Hence, the powers as available with the Commissioner under the GGST Act, are d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any of the notifications issued under the GGST Act." 20. Mr.Trivedi, in support of his aforesaid submissions, has placed reliance on the following decisions : (1) Sidhartha Sarawgi v. Board of Trustees for the Port of Kolkata and others, reported in (2014)16 SCC 248; (2) State of Bihar and others v. Anil Kumar and others, reported in (2017)14 SCC 304; (3) Sahni Silk Mills (P) Ltd. and another v. Employees' State Insurance Corporation, reported in (1994)5 SCC 346. ANALYSIS : 21. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the impugned Notification is liable to be quashed and set-aside. 22. Before adverting to the rival submissions canvassed on either side, we must look into few relevant provisions of the law. 23. Section 2(24) of the GGST Act, 2017, defines the term 'Commissioner'. It reads thus : "(24) "Commissioner" means the Commissioner of State tax appointed under section 3 and includes the Chief Commissioner or Principal Commissioner of State tax appointed under section 3." 24. Section 3 is with regard to the offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate within twenty four hours. (3) Subject to the provisions of the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) where a person is arrested under sub-section (1) for any offence specified under sub-section (4) of section 132, he shall be admitted to bail or in default of bail, forwarded to the custody of the Magistrate; (b) in the case of a non-cognizable and bailable offence, the Deputy Commissioner or the Assistant Commissioner shall, for the purpose of releasing an arrested person on bail or otherwise, have the same powers and be subject to the same provisions as an officer-in-charge of a police station. " 27. Section 167 is with regard to the delegation of powers. It reads thus : "167.Delegation of powers. The Commissioner may, by notification, direct that subject to such conditions, if any, as may be specified in the notification, any power exercisable by any authority or officer under this Act may be exercisable also by another authority or officer as may be specified in such notification. " 28. We may also look into the Circular : 49 (Flyer No.) dated 1st January 2018. The Circular reads thus : "Circular: 49 (Flyer No.) dated 01-Jan-2018 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping goods which escaped payment of tax or manipulating accounts or stocks which may cause evasion of tax; Inspection can also be done of the conveyance. carrying a consignment of value exceeding specified limit. The person in charge of the conveyance has to produce documents/devices for verification and allow inspection. Inspection during transit can be done even without authorisation of Joint Commissioner. (ii) Inspection in movement (a) Any consignment, value of which is exceeding ₹ 50,000/-, may be stopped at any place for verification of the documents/devices prescribed for movement of such consignments. (b) If on verification of the consignment, during transit, it is found that the goods were removed without prescribed document or the same are being supplied in contravention of any provisions of the Act, then the same can be detained or seized and may be subjected to penalties as prescribed. (c) To ensure transparency and minimise hardships to the trade the law provides that if during verification, in transit, a consignment is held up beyond 30 minutes the transporter can feed details on the portal. This will ensure accountability and transparency for all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire proceedings is made and forwarded to the Commissioner forthwith. (iv) Arrests In the administration of taxation the provisions for arrests are created to tackle the situations created by some unscrupulous tax evaders. To some these may appear very harsh but these are necessary for efficient tax administration and also act as a deterrent and instill a sense of discipline. The provisions for arrests under GST Law have sufficient inbuilt safeguards to ensure that these are used only under authorisation from the Commissioner. Besides this, the GST Law also stipulates that arrests can be made only in those cases where the person is involved in offences specified for the purposes of arrest and the tax amount involved in such offence is more than the specified limit. The salient points at these provisions are :- (a) Provisions for arrests are used in exceptional circumstance and only with prior authorisation from the Commissioner. (b) The law lays down a stringent criteria and procedure to be followed for arresting a person. A person can be arrested only if the criteria stipulated under the law for this purpose is satisfied i.e. if he has committed specified offences (not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 98], has succinctly discussed the concept of delegation. Paragraph 37 reads as follows: "37. ... Delegation is not the complete handing over or transference of a power from one person or body of persons to another. Delegation may be defined as the entrusting, by a person or body of persons, of the exercise of a power residing in that person or body of persons, to another person or body of persons, with complete power of revocation or amendment remaining in the grantor or delegator. It is important to grasp the implications of this, for, much confusion of thought has unfortunately resulted from assuming that delegation involves or may involve, the complete abdication or abrogation of a power. This is precluded by the definition. Delegation often involves the granting of discretionary authority to another, but such authority is purely derivative. The ultimate power always remains in the delegator and is never renounced." 31. As a general rule, whatever a person has the power to do himself, he may do by means of an agent. This broad rule is limited by the operation of the principle that a delegated authority cannot be re-delegated, delegatus non-potest delegare. The naming of a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried on an extreme. A public authority is at liberty to employ agents to exercise its powers. That is why in many statutes, delegation is authorised either expressly or impliedly. Due to the enormous rise in the nature of the activities to be handled by statutory authorities, the maxim delegat us non potest delegare is not being applied specially when there is question of exercise of administrative discretionary power. 6. By now it is almost settled that the legislature can permit any statutory authority to delegate its power to any other authority, of course, after the policy has been indicated in the statute itself within the framework of which such delegatee is to exercise the power. The real problem or the controversy arises when there is a sub-delegation. It is said that when Parliament has specifically appointed authority to discharge a function, it cannot be readily presumed that it had intended that its delegate should be free to empower another person or body to act in its place. In Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 : (1966) Supp SCR 311 this Court said in respect of sub-delegation (at p. 306 of AIR): "Bearing in mind that the maxim dele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself to specify the particular authorities or officers who could exercise power under S.3 and it was not open to the legislature to empower the Central Government to say what officer or authority could exercise the power. Reference in this connection was made to two decisions of the Supreme Court of the United States of America - 'Panama Refining Co. v. Ryan,' (1934) 293 US 388 (F) and 'Schechter v. United States,' (1934) 295 US 495 (G). In both these cases it was held that so long as the policy is laid down and a standard established by a statute, no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. These decisions in our judgment do not help the contention of Mr.Umrigar as we think that S.4 enumerates the classes of persons to whom the power could be delegated or sub-delegated by the Central Government and it is not correct to say 'that the instrumentalities have not been selected by the Legislature itself." In the aforesaid case, the sub-delegation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Superintendent of Police. The controversy arose because of a notification issued by the State of Bihar. The notification was issued by the State Government in exercise of its power vested under Section 9 of the SC/ST Act. The notification issued by the State of Bihar virtually diluted, or rather, did away with Rule 7 of the SC/ST Rules (framed by the Central Government), which required all the investigations in matters arising under the Act to be carried by an officer not below the rank of the Deputy Superintendent of Police. The notification issued by the State of Bihar allowed the investigative process under the SC/ST Act to be carried by the officers three rank below the rank of the Deputy Superintendent of Police. The Supreme Court considered the pivotal issue, whether the notification issued by the State of Bihar in exercise of the powers vested in the State Government under Section 9 of the SC/ST Act could be considered to have been exercised in breach of or in excess of the powers delegated to the State Government. 34. In the aforesaid context, the Supreme Court observed as under : "15. The next issue that arises for consideration is, whether the notification issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure. And as such, it needs to be appreciated, that when the provisions of the 'SCST Act', came to be worked out, at the outset, police personnel only, including those holding the rank(s) of Inspector, Sub-Inspector and Assistant Sub-Inspector, exercised the above powers. All these police personnel, were authorised by Section 9 of the 'SCST Act', to be a part of the investigative process. In addition, under Section 9 aforementioned, a State Government was authorized, to delegate the power of investigation (in addition to, the power of arrest, and of prosecution), in respect of offences under the 'SCST Act', "......to any officer of the State Government .....", as the State Government may consider "necessary", "...for the prevention of and for coping with any offence....." under the `SCST Act'. The power vested with the State Government, under Section 9 of the 'SCST Act', was therefore clearly expansive, obviously intended to and was enlarge the zone of arrest, investigation and prosecution, to officers/officials in addition to those authorised to do so under the Code of Criminal Procedure. The power conferred on a State Government under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication dated 03.06.2002, issued by the State Government, in exercise of the power vested in it under Section 9(1)(b) of the 'SCST Act'. Accordingly, we find no merit in the challenge raised on behalf of the appellant-accused, to the notification dated 03.06.2002. " 35. In Sidhartha Sarawgi (supra), the question before the Supreme Court was, whether there is any exception to the principle that the 'delegate has no power to delegate', and whether there is any distinction between the delegation of legislative and non-legislative powers. In this regard, the Supreme Court observed as under : "4. There is a subtle distinction between delegation of legislative powers and delegation of non-legislative/ administrative powers. As far as delegation of power to legislate is concerned, the law is well-settled: the said power cannot be sub-delegated. The Legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and formally enacting that policy into a binding rule of conduct. Subordinate legislation which is generally in the realm of Rules and Regulations dealing with the procedure on implementation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorized officers. It was held that: "13. The functions discharged by a High Court can be divided broadly into judicial and administrative functions. The judicial functions are to be discharged essentially by the Judges as per the Rules of the Court and cannot be delegated. However, administrative functions need not necessarily be discharged by the Judges by themselves, whether individually or collectively or in a group of two or more, and may be delegated or entrusted by authorization to subordinates unless there be some rule of law restraining such delegation or authorisation. Every High Court consists of some administrative and ministerial staff which is as much a part of the High Court as an institution and is meant to be entrusted with the responsibility of discharging administrative and ministerial functions. There can be "delegation" as also there can be "authorization" in favour of the Registry and the officials therein by empowering or entrusting them with authority or by permitting a few things to be done by them for and on behalf of the Court so as to aid the Judges in discharge of their judicial functioning. Authorization may take the form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose and object of the statute should be adopted." 9. The Constitution confers power and imposes duty on the Legislature to make laws and the said functions cannot be delegated by the Legislature to the executive. The Legislature is constitutionally required to keep in its own hands the essential legislative functions which consist of the determination of legislative policy and its formulation as a binding rule of conduct. After the performance of the essential legislative function by the Legislature and laying the guiding policy, the Legislature may delegate to the executive or administrative authority , any ancillary or subordinate powers that are necessary for giving effect to the policy and purposes of the enactment. In construing the scope and extent of delegated power, the difference between the essential and non-essential functions of the delegate should also be borne in mind. While there cannot be sub-delegation of any essential functions, in order to achieve the intended object of the delegation, the non-essential functions can be sub-delegated to be performed under the authority and supervision of the delegate. 10. Sometimes, in the plenary legislation itself, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ss. 21, 34 (hereinafter referred to as, 'the Act') is an Act intended "to make provision for the constitution of port authorities for certain major ports in India and to vest the administration, control and management of such ports in such authorities and for matters connected therewith". Section 3 of the Act provides for the constitution of a Board of Trustees (hereinafter referred to as 'the Board'). Section 5 provides that: "5. Board to be body corporate.-Every Board constituted under this Act shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold or dispose of property and may by the name by which it is constituted, sue or be sued." 13. Section 21 of the Act provides for delegation of powers of the Board with the approval of the Central Government on the Chairman and specification of exercise of such powers conferred on the Chairman by the Deputy Chairman or any other officer of the Board. The provision reads as follows: "21. Delegation of powers.- A Board may, with the approval of the Central Government, specify- (a) the powers and duties conferred or imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 26.05.1988 delegating the power to terminate any lease on the Chairman. The Chairman was also authorized by the said Resolution to issue ejectment notices. The text of the Resolution reads as follows: ".. Resolution No. 82-Resolved to sanction the proposal for delegation of powers to the Chairman by invocation of section 21(a) of the Major Port Trust Act, 1963, the power to terminate leases sanctioned by the Trustees and to authorizing him to issue ejectment notices, subject to the sanction of the Government." 16. It is the contention of the petitioners that the power to terminate the lease having been specifically conferred on the Chairman, the steps now taken by the Land Manager by issuing the impugned notices for eviction, are clearly without jurisdiction and, hence, illegal and inoperative. On behalf of the Board of Kolkata Port Trust, it is contended that the decision to terminate the lease has actually been taken by the Chairman and the issuance of notice of termination in furtherance of the decision taken by the Chairman alone, has been delegated to the Land Manager. Our attention is also invited to Office Order No. 6480/3/0 dated 22.01.1990, which reads as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red or imposed upon or vested in the Commissioner by any of the sections, sub-sections or clauses mentioned in sub-section (2) may be exercised, performed or discharged, under the Commissioner's control and subject to his revision and to such conditions and limitations if any, as he shall think fit to prescribe, by any municipal officer whom the Commissioner generally or specially either by name or by virtue of office, empowers in writing in this behalf; and in each of the said sections, sub-sections and clauses the word "Commissioner'' shall, to the extent to which any municipal officer is so empowered, be deemed to include such officer. (2) The sections, sub-sections and clause of this Act referred to in sub-section (1) are the following namely:- "* * * * Section 105B. Section 105C Section 105D Section 105E * * * *" A reference to Ss.105B, 105C, 105D and 105E was inserted by the Maharashtra Act XIV of 1961. These sections are in Chapter 6A which was also newly added by the same Act. It is not necessary to refer to these sections, except a portion from S.105B which brings into prominence the action taken by the Corporation against the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imself the right to intervene to impose his own decision upon his delegate. What those words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action or the period or time during which the power might be exercised and so on and so forth. In other words. the administrative side of the delegate's duties was to be the subject of control and revision but not the essential power to decide whether to take action or not in a particular case. This is also the intention of S.68 as interpreted in the context of the several delegated powers. This is apparent from the fact that the order of the delegate amounts to an order by the Commissioner and is appealable as such. If it were not so the appeal to the Bombay City Civil Court would be incompetent and the order could not be assailed. The order of the delegate was the order of the Commissioner and the control envisaged both in S.68 and the order of delegation was not control over the decision as such but over the administrative aspects of cased and their disposal. No. allegation has been made that the Commissioner intervened in the decision of the case or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly be rigorous while requiring the power to be exercised by the persons or the bodies authorized by the statutes. As noted above, it is essential that the delegated power should be exercised by the authority upon whom it is conferred and by no one else. At the same time, in the present administrative setup, the extreme judicial aversion to delegation should not be carried to an extreme. There is only one Commissioner of State Tax in the State of Gujarat, and having regard to the enormous functions and duties to be discharged under the new tax regime, he has been empowered to delegate his powers to the Special Commissioner of State Tax and the Additional Commissioners of State Tax. 41. We take notice of the fact that the delegation has been authorized expressly under Section 5(3) of the Act. We would have definitely interfered if the Special Commissioner or the Additional Commissioners would have further delegated the power to officers subordinate to them. Such is not the case over here. 42. In the impugned notification it has been stated that the functions delegated shall be under the overall supervision of the Commissioner. When the Commissioner stated that his functions were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. We are of the view that the observations made by this Court in the above referred para-35 could be termed as per incurium as such observations run contrary to the Supreme Court decisions referred to above in this judgment. 46. It is an accepted principle of administrative law that the repository of power must exercise that power personally. However, there are two exceptions to this principle : 1. Legislation provides for the power to delegate or authorise : An express power to delegate, usually in legislation, allows the person who has the legislative authority to delegate that authority to others. The individual/s or position/s having the delegation can exercise the authority in their own right. An example of an express power to delegate can be seen in section 5(3) of the Act, 2017. 2. Implied power to authorise : An implied power to authorise, arises where even though there may or may not be an express power to delegate in legislation, there can be an implied power for an official to exercise the power on the person's behalf - it is often termed the 'alter ego' principle, the 'Carltona principle' or an implied power to delegate. This principle arose from the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt observed as under : "From perusal for Sec. 16(2) of the Act it is clear that High Court has to form an opinion about the ability, standing at the Bar or special knowledge or experience in law of an advocate and when he is found deserving, he is designated as senior advocate. Process of forming opinion by Hon'ble Judges of this Court is a continuous process based on the observation of the performance of the advocate in arguing cases before the Judge concerned. Such kind of opinion cannot be formed except by long and sustained observation for years. Opinion forming process is thus, objective, However, it is expressed in subjective manner by designating an advocate as senior advocate or by refusing to confer this distinction. The expression is subjective as Hon'ble Judges are not required to assign any reasons for such refusal. Opinion forming is objective as the concerned advocate appears, argues his cases and his performance regarding ability, standing at the Bar and his knowledge and experience of law is judged frequently by Hon'ble Judges. It cannot be disputed that function is necessarily administrative but it is statutory in nature. Whether such kind of statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondent no.2, i.e. the Commissioner of the Corporation, had no power to delegate the powers conferred upon him by Section 148 of the Act to any other officer of the Corporation, and consequently, the orders passed by the Assessment Officer overruling the objections submitted by the petitioner could be termed as without jurisdiction or null and void. On the other hand, on behalf of the Corporation, it was contended that the Commissioner is empowered under the provisions of Section 69(4) of the Act, 1956, to delegate any of the powers, duties or functions conferred upon him by the Act to any officer of the Municipal Corporation and that in pursuance of that power the Commissioner had delegated the power conferred upon him by Section 148 of the Act. It was argued on behalf of the Corporation that the orders passed by the Assessment Officer overruling the objections of the petitioner cannot be held to be without jurisdiction or null and void. 55. The following questions fell for the consideration of the Division Bench of the Madhya Pradesh High Court : "Whether the power to determine objections to valuation made under the Act, conferred by Section 148 of the Act, coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the petitioner that S.69(4) of the Act refers only to the administrative powers under the Act and not to any other power under the Act. There is no warrant for construing the provisions of S.69(4) of the Act in such a way as to confine it to delegation of administrative powers only. S.69(4) of the Act enables delegation of all powers conferred upon the Commissioner by the Act, irrespective of the nature of the power. When an officer of the Corporation decides the objections under S.148 of the Act, in pursuance of the powers conferred upon by the Commissioner, the order passed by that officer is tantamount to an order passed by the Commissioner by virtue of S.5(11) of the Act and is appealable to the District Court under S.149 of the Act. While conferring power on the Commissioner to delegate his functions under the Act, the legislature has not chosen to limit that power to administrative functions only. S.69(4) of the Act expressly confers upon the Commissioner the power to delegate any power conferred upon him by the Act, to any Municipal Officer. That the control and superintendence envisaged in S.69(4) of the Act cannot bear the meaning, which they in delegation of adminis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred by the petitioners have been decided by a person, who had no jurisdiction to decide those objections." 57. Thus, the dictum as laid in the aforesaid decision is that, be it quasi-judicial or administrative power, the same can be delegated provided the law expressly or by clear implication permits it to be delegated. The Bench took the view that having regard to Section 69(4) of the Act referred to above, the Commissioner has been empowered to delegate any of his powers. The Bench also clarified that in the absence of the provisions of Section 69(4) of the Act, the Commissioner could not have delegated the quasi-judicial powers conferred upon him by the Act. 58. One important observation made by the Division Bench of the Madhya Pradesh High Court is, "where a Corporation is established the Commissioner cannot possibly exercise each and every power conferred upon him by the Act". In such circumstances, the statute has permitted the Commissioner to delegate his powers to any of his subordinate authority. 59. The last contention of Mr.Pandya is that although the Commissioner of Tax has been empowered by the statute to delegate his powers, yet, at the same time, Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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