TMI Blog1967 (1) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... mpulsorily, certain lands for the establishment of an Agricultural Colony for creating better living conditions therein. The first respondent issued' a notification, on February 4, 1955, under s. 4 of the Act, stating that an extent of about 28 - 59 acres of lands, more fully described therein, and situated in the villages of Ghola and Natagarh, is likely be needed for a public purpose, viz., the establishment of an agricultural colony and the creation of better living conditions. There is no controversy that a major portion of the lands, comprised in ,this notification, belonged to the appellant-Mills. The said,, notification was published in the Calcutta Gazette, On February 17, 1955. This notification -was signed by the Assistant Secretary, Land and Revenue Department of the Government of West Bengal. The first respondent then directed the Society to prepare a development scheme and submit the same to the Collector, to enable him to hear objections as per the rules framed under the Act. On or about March 21, 1955, the Society submitted a development scheme and the Collector issued notice, under r. 5 (2) of the West Bengal Land Development and Planning Rules, 1948 (hereina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings taken by it are legal and valid, as they have been dealt with by officers who have been authorised to act in that behalf. Before we refer to the findings recorded by the High Court, in the writ petition, it is necessary to refer to some of the provisions of the Act and the rules framed thereunder, in order to appreciate the contentions taken by the parties and the opinion expressed by the High Court. It is also necessary to refer to the Rules of Business, issued by the Governor of West Bengal, under Art. 166(3) of the Constitution and the Standing Orders made by the Minister-in-charge of the Department of Land and Land Revenue. Art. 166 of the Constitution is a; follows 166. (1) All executive action Of the Government of a State shall be expressed to. be take' in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Secretary of the department what matters or classes of matters are to be brought to his personal notice. Copies of such standing orders shall be sent to the Governor and the Chief Minister. The Minister-in-charge of the Department of Land and Land Revenue, with which we are concerned, in these proceedings made Standing Orders, under rr. 19 and 20 of the Rules of Business, on November 29, 1951. Standing Order No.1 is to the effect that all matters specified therein, are to be brought to the provided that, apart from the matters referred to in Standing Order No. 1, the various items mentioned therein, relating to Land and Land Revenue Department, are to be brought to the notice of the Minister, before the issue of orders. According to the appellant, the pro- ceedings taken by the Government under the Act, are covered by item 18, or 28 or 29 of Standing Order No. 2. Therefore, those items alone are referred to by us; and they are as follows 18. All cases proposed to be taken up by the Land Planning Committee set up under the Land Development and Planning Act. 28. All schemes relating to acquisition and settlement of waste lands. 29. All cases relating to land acquisiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is inter and the Collector has to give an opportunity to the said objector of being heard; and, after hearing objections and making such further inquiry, the collector is to submit the case to the State Government along with his report. Under s. 5, the State Government may direct the prescribed authority or authorise any company or local authority to prepare, in accordance with the rules, a development scheme in respect of any notified-area. The said section also provides for such schemes being prepared and submitted to the State Government for its sanction. The Government may sanction the scheme either without any modification or subject to such modifications as it considers fit. Under s. 6, when a development scheme is sanctioned, and when the' State Government is satisfied that any land in the notified area for which such scheme has been sanctioned, is needed for the purpose of executing such scheme, a declaration to the effect that such land is needed for a public purpose shall be made by the State Government. Section 10 provides for the Government directing the prescribed authority to execute any development scheme sanctioned by it :or cause it to be executed in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case there has been no such delegation, autho- rising the Secretary or the Assistant Secretary to deal with such matters. In this connection, the appellant has relied on items 18, 28 and 29, referred to in Standing Order No. 2, issued by the Minister-in-charge, as indicating that those matters have to be dealt with only by the Minister. On behalf of the State it was urged that, as the notification issued under s. 4 and the declaration made under s. 6. have been authenticated in the manner, specified by the Rules made by the Governor under Art. 166(2) of the Constitution, it was not open to the appellant to go behind and question the validity of either the notification or the declaration, which contained a recital that the Governor was of the opinion that the lands were needed for a public purpose. According to the State, this recital shows that the Governor's satisfaction is clearly made out. The res- pondents also pointed out that the Governor had issued the Rules of Business, under Art. 166(3) of the Constitution; and, under rr. 19 and 20, therefore, the Minister-in-charge, of the particular department, has been clothed with authority, by means of Standing Orders, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t,in his writ petition. This order of the learned Judge was challenged, in two ap- peals, before a Division Bench of the Calcutta High Court, viz., Appeals from Orders Nos. 397 and 398 of 1958. One appeal was filed by the State, along with respondents 2 and 4, and the other, by the Farmers Society, the 3rd respondent herein. In both the appeals there was a common attack against the order of the learned Single Judge setting aside the entire proceedings taken by the Government, under the Act. The Division Bench has also held that Art. 166(2) is only to the effect that, when authentication is made in the manner mentioned therein, what is made conclusive is that the order has been made by the Governor; but, whether, in making the order, the Governor has acted in accordance with the law, still remains open to adjudication. The learned Judges have also held that, by virtue of the power conferred under the Rules of Business issued by the Governor it is open to a Minister, by making proper Standing Orders, to delegate his functions and authorise disposal of such functions to his subordinates. The learned Judges then considered the question as to whether there has been such a delegation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequent proceedings, apply with equal force to the notification issued under 4. The learned counsel ,also urged that, inasmuch as the executive power of the State is vested, under Art. 154, in the Governor, the satisfaction, contem- plated before issue of the notification under s. 4 of the Act, should have been arrived at by the Governor himself. Counsel also urged that, even if, under the Rules of Business, issued under Art. 166(3) of the Constitution, by the Governor, a Minister-in-charge can delegate his functions, by making suitable Standing Orders in that regard, in this case, the Standing Orders made by the Minis- ter-in-charge, will clearly show that all the matters connected with the proceedings to be taken under the Act, have been reserved to be dealt with by the Minister himself. Therefore, according to counsel, inasmuch as, admittedly, the Minister has not dealt with any of these proceedings, even the issue of a notification under s. 4 is illegal and void. In this connection, learned counsel referred us to items 18, 28 and 29, of Standing Order No. 2, made by the Minister-in-charge, in this case. We may, at this stage, -indicate that no contention was taken before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects all executive action to expresse an authenticated in the manner therein laid down but an omis- sion to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must take a decision as to whether [1] (1964) 6 S.C.R. 368. Sup. Court/67-13 the detention order should be confirmed or not under section 11 (1).' The same view was reiterated by this Court in The State of Bombay v. Purshottam Jog Naik (1952 S.C.R. 674), where it was pointed out that though the order in question then was defective in form it was open to the State Government to prove by other means that such an order had been validly made. This view has been reaffirmed by this Court in subsequent decisions : see Ghaio Mall and Sons v. The State of Delhi (1959 S.C.R, 1424), and it is, therefore, settled law that provisions of Art. 166 of the Constitution are only directory and not, mandatory in character and if they are not complied with, it can be established 1 as a question of fact that the impugned order was issued in fact by the State Government or the Governor. We are also in agreement wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urged that this must be considered to be a scheme relating to acquisition and settlement of waste lands, in which case, item No. 28 will stand attracted. So far as this is concerned, the learned Single Judge, who dealt with the writ petition, has negatived the contention of the appellant. The learned Judge has found, as a fact, that there is no evidence to show that the lands, which are the subject of the issue of notification, under s. 4, are wastelands; and, therefore, he has held that it cannot be said that the notification relates to acquisition of waste lands. The learned Judge has also stated that, even the appellants in his writ petition, has not alleged that the land, or any part of it, is waste. In this view, the learned Judge has held that, 'Ion the evidence, it is not possible to hold that the acquisition relates to waste lands. No doubt, the Division Bench has not expressed any opinion on this aspect, but, as the records now stand, we have to accept the findings recorded by the learned Single Judge, in which case, it follows, that the appellant cannot rely upon item No. 28, either. This leaves us with the question as to whether the issue of a notification under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Planning Committee at this stage. Nor are we able to find any provision, in the Act or the Rules, which gives a right to the Land Planning Committee to be consulted, or to propose any case, before a notification is issued by the Government, under s. 4 of the Act. There is no duty imposed, or function assigned, to the Land Planning Committee, either under the Act or the Rules, to participate at this stage. No doubt, Mr. Bishan Narain, in this connection, referred us to the proceedings, dated January 21, 1955, of the 270th Meeting of the Land Planning Committee, as supporting his contention that it is the Land Planning Committee that has, proposed the acquisition of the lands in question, under- the Act, and therefore, the matter comes under item 18 of Standing Order No. 2. In the proceedings, referred to by learned counsel, it is stated that the Land Planning Committee considered a proposal submitted by the third respondent herein, for acquisition and development of 28-59 acres of land, in the villages of Ghola and Natagarh. There is also a recommendation, by the Land Planning Committee, that the land, referred to by the third respondent, is needed for a public-purpose and, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Minister himself. Under Standing Order No. 5, the Minister-in-charge has authorised the Secretary to permit a Deputy or an Assistant Secretary of the Department, to dispose of certain types of cases and the, Secretary has also issued an order, which has been referred to earlier, in conformity with standing order No.5; and it is by virtue of this provision that the notification, under s. 4, was issued by the Assistant Secretary, Land and Revenue Department Government of West Bengal. We are in entire agreement with the reasons given by the Division Bench of the Calcutta High Court for upholding the validity of the notification, dated, February 4, 1955, issued under 4 of the Act. Before we conclude, we should also make it clear that' in this case, no contention was advanced that matters connected with the issue of a notification, under s. 4 of the Act cannot be delegated by the Minister-in-charge and that they have to be dealt with by the Minister himself. We had, therefore, no occasion to consider this aspect of the matter. As' pointed out above, the entire arguments have proceeded on the basis that there has been no such delegation, by the Minister, under the Standing Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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