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TMI Blog1966 (3) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... 962, published in the Maharashtra Government Gazette, purporting to act under s. 4 of the land Acquisition Act, 1894 (I of 1894) - hereinafter referred to as the Act - notified that the land belonging to the petitioners was likely to be needed "for a public purpose, viz., for development and utilisation of the said lands as an industrial and residential area". By the said notification the third respondent was appointed to perform the functions of the Collector under s. 5-A of the Act in respect of the said lands. Pursuant to the said notification the third respondent issued a notification under s. 4(1) of the Act calling upon the petitioners to file their objections to the acquisition of the said lands under the Act. The petitioners filed their statement of objections and took the objection that the purpose for which the lands were required, viz., development and utilisation of the said lands as an industrial and residential area, was vague and was not genuinely or properly a public purpose. The petitioners further pointed out that the said lands and the contiguous lands of the petitioners formed a compact area of land situate on the Central Salsette Railway Track and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in the Land Acquisition (Bombay Amendment) Act, 1948; and (2) the acquisition of land for purposes of the development of areas from public revenues or some fund controlled or managed by a local authority and subsequent disposal thereof in whole or in part by lease, assignment, or sale, with the object of securing further development." 4. The validity of s. 3(f)(2) above has been questioned before us. Further, the Act was amended, by virtue of notification issued under s. 3(4) of Bombay Commissioners of Divisions Act, 1957 (Bombay Act 8 of 1958) - which for the sake of brevity will be referred to as the Commissioners Act. The notification had amended Section 3A, 4, 5A, 6, 7 and 17 of the Act as follows : "1. In section 3A, (i) after the words "State Government", where they occur for the first time, the words "or the Commissioner" shall be inserted; (ii) after the words "by the State Government in this behalf" the words "or, as the case may be, any officer authorised by the Commissioner" shall be inserted. 2. In section 4 - (i) in sub-section (1), after the words, "appropriate Government" the words "or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch requires assent of the President under arts. 31(2) and art. 254 of the Constitution, and the assent not having been obtained, the notification is bad. 5. It would be convenient to take the first three points together because in substance they raise the point that s. 3(4) is bad, because the legislature should have performed the functions entrusted to the State Government under s. 3(4) of the Commissioners Act. Mr. Niren De Contends that from 1857 onwards the Indian statutes had made it the duty of the state Government to decide whether a land was likely to be needed for a public purpose or not and once the Government was satisfied the declaration was made conclusive. He says that this is an essential legislative feature of the Land Acquisition Act and the Bombay Legislature should have directly amended the Land Acquisition Act and not empowered the State Government to do so. He says that the State Legislature has not really decided that this essential legislative feature should be changed and it is incompetent to confer that power on the State Government. He further points out that there never has been any power of delegation in the Land Acquisition Act since 1857. He says that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edule. Section 6A is as follows : "6. (1) The Commissioners of divisions shall be appointed by the State Government. (2) The Commissioners shall exercise the powers and discharge the duties conferred and imposed on a Commissioner under this Act or under any law for the time being in force, and so far as is consistent therewith all such other powers or duties of appeal, superintendence and control within their respective divisions, and over the officers subordinate to them as may from time to time be prescribed by the State Government. (3) The Commissioner shall also, subject to the control and the general or special orders of the State Government, exercise such powers and discharge such duties, as the State Government may confer or impose on them for the purpose only of carrying out the provisions of any law for the time being in force, and so far as is consistent therewith." 9. It will be noticed that the Commissioner is enabled by sub-s. 6A-(2) to exercise powers and discharge duties conferred not only by the Bombay Land Revenue Code 1879 but any other law for the time being in force. "Division" is defined to mean the territories formed into a division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duties conferred or imposed on the Commissioner or withdrawing them, as the case may be, and the Schedule shall be amended accordingly. (4) The State Government may confer and impose on the Commissioner powers and duties under any other enactment for the time being in force and for that purpose may, by a notification in the Official Gazette, add to or specify in the Schedule the necessary adaptations and modifications in that enactment by way of amendment; and thereupon - (a) every such enactment shall accordingly be amended and have effect subject to the adaptations and modifications so made, and (b) the Schedule to this Act shall be deemed to be amended by the inclusion therein of the said provision for amending the enactment." 10. Section 4 repeals the Bombay Commissioners (Abolition of Office) Act, 1950, and the Central Provinces and Berar Commissioners (Construction of References) Act, 1948. The Bombay Commissioners (Abolition of Office) Act, 1950 (Bom. Act 28 of 1950) has abolished the office of the Commissioner and further provided that wherever a reference was to the Commissioner, the reference should be read as a reference to the State Government or to such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r powers and duties on them which could appropriately be discharged by them. The legislature has no doubt left it to the State Government to decide whether any duties imposed on it or some of the authorities should now under the new administrative set up system be discharged by the Commissioners. But the Legislature has definitely given an indication of the kinds of powers that may be conferred on them in Section 6 and 7. Further, the very nature of the office held by a Commissioner and the duties performed by him up to 1950 would show that it is only the duties of the State Government and of officers of equivalent rank discharging revenue and executive duties which would be conferred on the Commissioner. We see no difference in principle between the State Legislature inserting a section in an Act enabling the State Government to delegate its power to another authority and the Legislature in view of the change in the administrative set up conferring powers on the State Government to confer not only its own duties on Commissioners but also of other officers performing executive and revenue duties. 13. This Court upheld the validity of s. 4 of the Essential Supplies (Temporary Power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atives the contention raised regarding the invalidity of section 4. In that case the Lt.-Governor in Council was given power to vest in a marketing board the powers conferred by section 4A(d) of the Natural Products Marketing (British Columbia) Act, 1936. The attack on the act was that without constitutional authority it delegated legislative power to the Lt.-Governor in Council. This contention was answered by their Lordship in these terms : "The third objection is that it is not within the powers of the Provincial Legislature to delegate so-called legislative powers to the Lt.-Governor in Council, or to give him powers of further delegation. This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the Constitution has granted legislative powers. Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament; and it is unnecessary to try to enumerate the innumerable occasions on which Legislatures, Provincial, Dominion and Imperial, have entrusted various persons and bodies with similar powers to those contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... policy and wisely left it to the State Government to reorganise the administration consequent on the setting up of commissioners Decision. The State Government is after all in charge of administration and it knows, specially in view of its previous experiences, what powers of existing authorities including itself can suitably be conferred on the Commissioners. We may mention that the Bombay High Court has in two decisions (Ganesh Varayan v. Commissioner Nagpur division, Nagpur (1964) 66 B.L.R. 807 and Sadruddin Suleman Jhaveri v. J. H. Patwardhan AIR1965Bom224 upheld the validity of the Commissioners Act. 18. This takes us to the fourth point, namely, whether the assent of the President was necessary to the notification amending the Act. It is common ground that the Commissioners Act received assent of the President. The question that is raised is whether it is necessary that assent of the President should be obtained for every notification issued under the Commissioners Act which has the effect of amending any legislation in respect of the matters in the concurrent List i.e. List III. In our opinion, it is not necessary because the amendment of the Act became effective by virtue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication under s. 6 of the Act. 21. There is no force in the first point because we find, on looking at the record, that the petitioners raised no objections to the acquisition and they never wanted any hearing on this point. As they did not object to the acquisition, it is difficult to see what enquiries had to be made under s. 5A. 22. We may next take up the question of the validity of s. 3(f)(2). In our view it is not necessary to decide this point because we have come to the conclusion that the notifications issued under Section 4 and 6 specified a public purpose; the purpose specified was "development and utilisation of the said lands as industrial and residential areas". In our opinion this purpose is a public purpose within the Land Acquisition Act as it stood before the amendment made by the Bombay Legislature and it is not necessary for the respondents to rely on the amendment to sustain the notification. This court in State of Bombay v. Bhanji Munji [1955]1SCR777 upheld the requisitioning of premises for housing a person having no housing accommodation on the ground that this was a public purpose. This Court observed at page 783 as follows : "In the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies in Greater Bombay. It found that of the total number of 11,539 registered factories in the State of Maharashtra as in 1958 Greater Bombay had 3,539 registered factories which meant that one third of the total number of factories in the State of Maharashtra were in Greater Bombay alone. Of the total number of factories in Greater Bombay as many as 76% were located in the Island of Bombay which admeasures only 26.19 sq. miles out of the total Greater Bombay area of 169 sq. miles. All these factories in Greater Bombay employ 44% of the total number of factory workers in the State and 85% of the factory workers in Greater Bombay were concentrated within the Island of Bombay alone. All these factors gave rise to a number of problems including the problem of traffic housing accommodation and deterioration of public utility services. As regards housing the Study Group observed that in the year 1958 there were about 57,37,000 tenements in Greater Bombay of all categories including a large portion of single room tenements. At the rate of five persons to a tenement the Study Group observed that the then existing tenements were only enough for 28 lakhs persons leaving 15 lakhs persons t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position even to attempt a comprehensive definition." 29. It was urged before us that the State Government was not entitled to acquire property from A and give it to B. Reliance was placed on the decision of the Supreme Judicial Court of Massachusetts (204 Mass. 607). But as pointed out by this Court, public purpose varies with the times and the prevailing conditions in localities, and in some towns like Bombay the conditions are such that it is imperative that the State should do all it can to increase the availability of residential and industrial sites. It is true that these residential and industrial sites will be ultimately allotted to members of the public and they would get individual benefit, but it is in the interest of the general community that these members of the public should be able to have sites to put up residential houses and sites to put up factories. The main idea in issuing the impugned notifications was not to think of the private comfort or advantage of the members of the public but the general public good. At any rate, as pointed out in Babu Barkya Thakur v. The State of Bombay [1961]1SCR128 a very large section of the community is concerned and its we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. We have, however, no doubt that the Government will, before disposing of the sites, have a scheme for their disposal. 33. In the result we see no force in any of the contentions urged before us and we hold that the notifications are valid. The petitions accordingly fail and are dismissed but there will be no order as to costs. K.N. Wanchoo, J. 34. We regret we are unable to agree. These two petitions under Art. 32 of the Constitution raise common questions of law and will be dealt with together. We may briefly state the facts in W.P. 66. The facts in the other petition are exactly similar except that the dates of the notifications are in some cases different and the lands notified are also different. On March 30, 1962, the Commissioner of Bombay Division issued a notification under s. 4 of the Land Acquisition Act, No. 1 of 1894, (hereinafter referred to as the Act). By this notification he declared that certain lands were likely to be needed for a public purpose, namely, "for development and utilisation of the said lands as an industrial and residential area". In consequence, objections were invited under s. 5-A of the Act and the Special Land Acquisition Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commissioner of Division in the State of Bombay was revived. We are concerned in the present appeal mainly with s. 3(4) of this Act. By section 3(1) it is provided that "for the purpose of constituting offices of Commissioners of divisions and conferring powers and imposing duties on Commissioners and for certain other purposes, the enactments specified in column 1 of the Schedule to this Act shall be amended in the manner and to the extent specified in column 2 thereof". Sub-section (2) thereof provided that "the Commissioner of a division, appointed under the law relating to land as amended by the said Schedule, shall exercise the powers and discharge the duties conferred and imposed on the Commissioner by any law for the time being in force, including the enactments referred to in sub-s. (1) as amended by the said Schedule". The Schedule made a number of amendments in the Bombay Revenue Code (No. 5 of 1879), the main amendment being that s. 6 provided for appointment of Commissioners for each division and s. 6-A provided for powers and duties of Commissioners. Further, in certain sections of the Land Revenue Law as applied to various areas in the reconsti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended and have effect subject to the adaptations and modifications so made, and (b) the Schedule to this Act shall be deemed to be amended by the inclusion therein of the said provision for amending the enactment. (5) The State Government may at any time in like manner cancel a notification under sub-section (4), and thereupon the relevant enactment shall stand unamended by the cancelled notification and the Schedule shall be altered accordingly." 38. It will be seen that these three sub-sections provided an integrated scheme. By sub-section (3) the State Government is given the power by notification in the Official Gazette to amend or delete any entry in the Schedule for the purpose of imposing any conditions or restrictions on the exercise of powers and discharge of duties conferred or imposed on the Commissioner or withdrawing them, as the case may be, and the Schedule shall be amended accordingly. Sub-section (4) empowers the State Government to confer and impose on the Commissioner powers and duties under any other enactment for the time being in force. It further empowers the State Government for that purpose by notification in the Official Gazette to add to or spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration before this Court in the State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others [1952]1SCR889 . In that connection Mahajan J. (as he then was) observed that "the phrase 'public purpose' has to be construed according to the spirit of the times in which the particular legislation is enacted." He also referred to Art. 39 of the Directive Principles of State Policy in construing the phrase "public purpose" after coming into force of the Constitution. In the same case, Das J. (as he then was) observed that "no hard and fast definition can be laid down as to what is a 'public purpose' as the concept has been rapidly changing in all countries, but it is clear that it is the presence of the element of general interest of the community in an object or aim that transforms such object or aim into a public purpose, and whatever furthers the general interests of the community as opposed to the particular interest of the individual must be regarded as a public purpose." 41. We respectfully agree with these observations. There can be no doubt that the phrase "public purpose" has not a static connotat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal authority would acquire land in the first instance and develop it in the manner already indicated and thereafter make profit by leasing, assigning or selling it to private individuals or bodies. It is also said that the object of securing further development which is the reason for sale or lease etc. is a very vague expression and there is nothing to show what this further development comprises of. 44. It is true that when this part speaks of "subsequent disposal thereof in whole or in part by lease, assignment or sale", it is not unlikely that this disposal will take place to private persons and thus in an indirect way the State would be acquiring the land from one set of individuals and disposing it of to another set of individuals after some development. If this were all, there may be some force in the argument that such acquisition is not within the concept of "public purpose" as used in Art. 31(2). But this in our opinion is not all. We cannot ignore the words "with the object of securing further development", which appear in this provision. It would have been a different matter if the provision had stopped at the words "lease, assignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may build these houses itself, but there is no reason why if the purpose is development of certain land as a residential area, the State or the local authority may not lease, assign or even sell the lands laid out and already developed in order that further development of building houses may be achieved. In such a case it will always be open to the State Government or the local authority to provide, and we have no doubt that it will always so provide, that the persons to whom the land is leased, assigned or sold carry out the further object of building houses. There is also no reason why the State or the local authority should not provide for the terms on which residential buildings would be made, the specifications of such buildings, and the time within which they should be made. There is also no reason why the terms should not provide that if the further object of development is not carried out within a reasonable time, the land would revert to the State or the local authority to be used for the purpose for which it was acquired. We have no doubt that the State or the local authority would see that such terms are imposed on those to whom lands are leased, assigned or sold with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... local authority, is not for a public purpose within the meaning of that phrase in Art. 31(2) of the Constitution. Population in India is rising and more or more industries are coming into being. Therefore where the acquisition is with the object of providing for residential and industrial development, we see no reason why such provision would not be included in the concept of public purpose in the present context. We are therefore of opinion that the words "with the object of securing further development" have a meaning and if that meaning is what we have stated above (as to which we have no doubt) it cannot be said that this provision made by the 1953 Act is not within the concept of Art. 31(2) of the Constitution. We therefore hold that the amendment by the 1953 Act already set out above is within the concept of public purpose in Art. 31(2) of the Constitution and cannot be struck down as ultra vires. 47. Delegated legislation is a well known modern device. In view of the complexities of modern life it is not possible for the legislature to find time to make all the detailed rules which are necessary to carry out the purposes of an enactment; so it delegates to an appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... says by sub-s. (3) that though it has deemed fit in its wisdom to confer a certain power on the Commissioner, it leaves it to the State Government to withdraw that power from the Commissioner and delete the necessary entry in the Schedule with respect thereto. So the State Government is given carte blanche to take away all or any of the powers conferred by the legislature itself under the Schedule. It may also be added that the Schedule in the present case is very different from the Schedule in the Edward Mills Co. Limited v. The State of Ajmer (1954)IILLJ686SC . In that case s. 27 of the Minimum Wages Act. (11 of 1948) gave power to the appropriate government after necessary formalities to add to the schedule any employment in respect of which it was of opinion that minimum rates of wages should be fixed under that Act. It will be seen that the schedule in that Act merely enumerated certain employments while the Schedule in the 1958 Act amends a large number of enactments. This method is merely a convenient device for making amendments in other enactments which would otherwise have found place in the main body of the 1958 Act. Further s. 27 of the Minimum Wages Act did not give an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his provision in two respects. As the words stand, they confer power on the State Government to amend any enactment for the time being in force even though that enactment may be a law under List I of the Seventh Schedule to the Constitution. It is urged that the legislature could not have meant to confer power on the State Government by this provision with respect to laws under List I of the Seventh Schedule to the Constitution, for the legislature itself had no power to make any amendment in laws referable to List I of the Seventh Schedule. We are of the opinion that the provision in sub-s. (4) can be read down to this extent that the legislature could never have intended to give power to the State Government in matters in which it had itself no power. We shall therefore proceed on the basis that in sub-section (4) the legislature only referred to enactments which it was itself competent to pass under Lists II and III of the Seventh Schedule to the Constitution. 51. Secondly, it is urged that we should read down this provision and hold that all that the legislature intended thereby was to give to the State Government power to confer on the Commissioner powers and impose upon him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that effect could not have been made by the legislature in sub-s. (4). It is however clear from the scheme of s. 3 that that is not all that the legislature intended. We have already referred to sub-s. (3) and held that by that provision the legislature empowered the State Government to amend or repeal the law contained in the Schedule to the 1958 Act. By sub-section (4) it further empowered the State Government to amend any other law not mentioned in the Schedule, though of course with the object of conferring powers and imposing duties on the Commissioner under other enactments which might have been conferred by those enactments on other authorities. In effect therefore the legislature was empowering the State Government by sub-s. (4) to substitute "the Commissioner" for the other authorities which might be mentioned in other enactments with respect to any powers and duties thereunder. 52. Taking a concrete case to illustrate out point and to show the far reaching effect of the provision in sub-s. (4) we may refer to s. 18 of the Act. Under that provision the Collector has the power to make reference to court in certain circumstances on the application of a person w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f subordinate legislation but give power to it to undo what the legislature itself has done by the 1958 Act; they also give further power to the State Government to amend what the legislature may itself have provided in other enactments already in force or what it may provide by other enactments to be passed in future. We have no doubt therefore that sub-s. (4) cannot be read down in the manner urged on behalf of the State. There is also no doubt that as this provision stands it is a complete transfer of legislative power by the legislature to the executive within the ambit of sub-s. (4). Sub-section (5) is consequential to sub-s. (4) and will fall along with it. We are therefore of opinion that the provisions contained in sub-sections (3), (4) and (5) of s. 3 of the 1958 Act which are clearly an integrated scheme are ultra vires the power of the legislature for they amount to transfer by the legislature of its legislative power to the State Government, and in any case suffer from the vice of excessive delegation if such conferment of power can be called delegation for the purposes of subordinate legislation. 53. We may now refer to two decisions of the Bombay High Court in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erritories. There is therefore no parallel between that case and the present case. 55. We are further of opinion that Re. Delhi Laws Act [1951]2SCR747 case cannot help the State. The main question in that case was about the extension of certain laws with necessary adaptations and modifications to Delhi. It was in that connection that this Court held that that was also conditional legislation and laws in force in other parts of India could be extended to Delhi subject to necessary modifications and adaptations. Even so this Court pointed out that it was not open to the authority on whom such power was conferred to modify them in any essential feature when ordering their extensions. What constitutes "essential feature" of a piece of legislation was a matter over which there was difference of opinion between the learned Judges of this Court; but they were agreed that no essential feature could be altered by the power given to the executive to apply other laws in force in India to the territory of Delhi by modification or adaptation. This would also be more or less a case of conditional legislation and not of delegated legislation. As pointed out by Mukherjea J. (as he was t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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