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TMI Blog1959 (3) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... ired under these proceedings belonged. It was contended by the applicant that the sanction of a scheme, which is an essential prerequisite of an order for declaration, had not been given in accordance with law. Several other objections to the proceedings taken in the application were not pressed. One point that the notification was bad in law as there had been no satisfaction of the State Government in accordance with law and another point that the declaration was bad on the similar ground that there had been no satisfaction of the State Government in accordance with law were, however, raised at the trial and dealt with by the learned Judge. The learned Judge came to the conclusion that the sanction of the scheme or the satisfaction as required under Section 4 and Section 6 of the Act was not by or of the Government, in accordance with law, and made the orders mentioned above. 2. Section 4 of the West Bengal Land Development and Planning Act under which the notification was made, is in these words: The State Government may, by notification in the Official Gazette, declare any area specified in the notification to be a notified area if it is satisfied that any land in such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Governor it is not argued that the Governor's personal satisfaction, or sanction is required. Mention has to be made in this connection of the provisions in Article 154 of the Constitution that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution and the provisions in Article 166(3) of the Constitution that the Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this constitution required to act in his discretion. The matters under the Land Development Act in which the executive action has, in the present case, been taken is admittedly not business with respect to which the Governor is required to act under the Constitution in his discretion. It has been established by the order made by the Governor of West Bengal under Article 166(3) that the business of the Government in connection with these matters has been allocated to the Minister in charge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : In the opinion of their Lordships, the contention of the Crown goes too far, as the sub-section only relates to one specified ground of challenge, namely, that the order or instrument was, not made or executed by the Governor. Their Lordships agree with the statement by the learned Chief Justice of the Federal Court namely, It is quite a different thing to question the accuracy of a recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a court as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to establish even a prima facie case that the recital is not accurate. 7. I have, therefore, come to the conclusion that while the statement in the notification and the declaration that the Governor was satisfied on certain things, does raise a pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court was not drawn to the fact that this exact point whether there can be such delegation by means of the Rules of Business of the duty of satisfaction to a Secretary to the Government, was the very question on which the Chief Justice of the Federal Court disagreed with the learned Judges in Sibnath Banerjee's case while the other Judges held that there could be no such delegation. The learned Chief Justice held that such delegation could be and was, in that particular, case, actually made by the Rules of Business. The Privy Council agreed with the learned Chief Justice. In that case a further question had to be considered--whether the special means of delegation provided in Sub-section (5) of Section 2 of the Defence of India Act operated to exclude other ways of delegation. The Privy Council held that it did not and that such matters as those which fell to be dealt with by the Governor under Rule 26 of the Defence of India Rules, under which certain orders can be made if he was satisfied of some matters, could be dealt with by him in the normal manner in which the executive business, of the Provincial Government are carried on under the provisions of Chapter 2 of part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority given by the Rules of Business. 14. Rules 19 and 20 of the Rules of Business as framed by the Government of West Bengal under Clause 3 of Article 166 of the Constitution of India are relevant for our present purpose. They are in these words: 19. Except as otherwise provided by any other rule cases shall ordinarily be disposed of by or under the authority of the Minister-in-Charge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department. Copies of such standing orders shall be sent to the Governor and the Chief Minister: Provided that until such standing orders are made by a Minister, the standing orders which were made under the Rules of Business existing immediately before the commencement of these rules and which were in force in the department in charge of such Minister immediately before such commencement shall so far as may be, deemed to be the standing orders for that department made under this rule. 20. Each Minister shall by means of standing orders arrange with the Secretary of the department what matters or classes of matters are to be brought to his personal notice. Copies of such standin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be with that satisfaction and that sanction of the State Government. I would have found no difficulty in accepting this argument were it not for the fact that the provisions of paragraph 5 of the standing order cannot but be read as subject to the special provisions of paragraph 2 of the same order. Indeed the order made by the Secretary itself provides that if any rule or order requires that a case shall be submitted to the Minister-in-Charge, that has to be done by the particular Deputy Secretary or Assistant Secretary or who is in charge. The Secretary's order does not empower the Deputy Secretary or the Assistant Secretary to dispose of such a case without submission to the Minister-in-Charge. It is, therefore, necessary to see whether the case as regards satisfaction under Section 4 or a case as regards sanction under Section 5(2) or a case as regards satisfaction under Section 6 of the Land Development Act was required by paragraph 2 of the standing order made by the Minister to be submitted before him before disposal by the Assistant Secretary in charge. I am clearly of opinion that if these matters are included in any of the items mentioned in paragraph 2 the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be placed again before him for orders whether Government will sanction the scheme and again for orders whether Government is satisfied that any land in a notified area for which the scheme in that area is needed for the purpose of executing such scheme. 17. I have, therefore, come to the conclusion that the duty of being satisfied under Section 6, and the duty of giving sanction under Section 5(2) was not delegated to the Assistant Secretary, or to anybody else, and that these duties had to be performed by the Minister in charge in order that the satisfaction under S. 6 and the sanction under Section 5(2) may amount in law to be satisfaction of the Government, or sanction by the Government respectively. 18. It was admitted before us that the matter was not placed before the Minister in any of these stages. The necessary consequence is that the direction made under Section 5(1) to prepare a scheme, the sanction of the scheme under Section 5(2) and the satisfaction under Section 6 has not been in the eye of law, by or of the State Government, 19. As regards the satisfaction under Section 4 of the Land Development Act, I am unable to agree with the learned Judge that the stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illed. On this point Article 166(2) of the Constitution should be given the same construction as was given to the corresponding S. 59(2) of the Government of India Act, 1935 by their Lordships of the Judicial Committee in. 26. There is no doubt a strong presumption that a recital appearing in the authenticated order is correct. The learned Advocate General relies upon the declaration for the purpose of raising the presumption that the conditions precedent to the making of the order have been fulfilled. The declaration certainly contains the recital that it appears to the Governor that the land is needed for a public purpose. There is a presumption that this recital is correct but this presumption may be rebutted. It may be noted that the declaration does not contain a recital that the State Government has sanctioned the development scheme after consideration of the Report of the Collector. 27. The question, therefore, arises whether the State Government duly sanctioned the scheme and was satisfied that the land is needed for a public purpose as required by Sections 5(2) and 6(1). Having regard to the General Clauses Act the State Government means the Governor but it is nobody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India Rules could be delegated by the Governor to subordinate officers. That question was dealt with by their Lordships of the Judicial Committee in. Orders of preventive detention had been issued in the name of the Governor. It was admitted that the Governor had not personally considered any of the cases. Some of the cases had not been considered even by the Minister-in-Charge. Their Lordships held agreeing with the learned Chief Justice of the Federal Court that it was not necessary that a Governor should be personally satisfied as to the matters set out in Rule 26 and that such matters as those which fell to be dealt with by him under Rule 26 could be dealt with by him in the normal manner in which the executive business of the Provincial Government was carried on under the provisions of Chapter II of Part III of the Government of India Act, 1935 and in particular under the provisions of S. 49 and the Rules of Business made under Section 59. Their Lordships also pointed out that the term executive in the broader sense includes both decisions as to action and the carrying out of such a decision. It is to be noted that several detention orders and particularly the order in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State vested in him either directly or through his Ministers and other officers subordinate to him. Subordinate officers may be authorised in accordance with the Rules of Business framed under Article 166 of the Constitution to discharge the executive functions of the Governor. With great respect, therefore, I am unable to agree with the contrary opinion expressed by the Orissa High Court in AIR1952Ori200 . 33. At the same time it cannot be said that the Governor has exercised the executive power vested in him simply because some order is issued in his name by some subordinate officer. A subordinate officer can exercise the executive power of the State vested in the Governor only if he has been duly authorised to exercise that power on behalf of the Governor. 34. On behalf of the Appellants it is urged that the Secretary and the Assistant Secretary to the Land and Land Revenue Department were duly authorised to discharge the executive functions of the State Government in respect of all matters relating to the West Bengal Land Development and Planning Act, 1948 by the Rules of Business framed under Article 166(3) of the Constitution, and the standing orders made under those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the Standing Order. Item 18 reads thus: All cases proposed to be taken up by the Land Planning Committee set up under the Land Development and Planning Act. 'Proposed' must mean 'proposed by the Department'. When the matter come to the stage of direction under Section 5 of the Act the case is proposed to be taken up by the Land Planning Committee. Under Section 5 the State Government may either direct the prescribed authority or authorise any Company or Local Authority to prepare a development scheme. In the latter case, where the State Government authorises any company or local authority to prepare a scheme, the scheme must in view of Rule 5 of the West Bengal Land Development and Planning Rules be submitted to the State Government through the Land Planning Committee. Therefore, in either case the matter has to be taken up by the Land Planning Committee. Therefore, when the matter comes to a stage of giving directions under Section 5, the case necessarily becomes a case under item 18 of paragraph 2 of the Standing Order. Obviously, the case is not disposed of by the mere proposal that the matter be taken up by the Land Planning Committee. The matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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