TMI Blog1966 (3) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 said area could by re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 the Commissioner shall be inserted; (ii) in sub-section (2), after the words, such Government the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 it is well-settled that a legislature cannot empower an executive authority to change an Act in any essential features. He further urges that the Commissioners Act does not give any guidance to the State Government as to which Acts should be amended or not and powers of which officers should be taken away an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herewith 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 under the Bombay Land Revenue Code, 1879, or under that code in its application to the Kutch and Saurashtra areas of the State of Bombay, or under the Madhya Pradesh Land Revenue Code, 1954, or under the Hyderabad Land Revenue Act. Divisional officer means an officer appointed as such, immediately before the commencement of the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecify 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 authority as the State Government may by general or special order appoint. The Central Provinces and Berar Commissioners (Construction of References) Act, 1948 (61 of 1948) had similarly abolished the Commissioners Divisions of Nagpur, Jabbulpore, Chhatisgarh and Berar, and had provided that the appointment of Commissioners to these Divisions shall cease. By ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 Powers) Act, 1946 (24 of 1946) in Harishankar Bagla v. The State of Madhya Pradesh 1954CriLJ1322 . Section 4 was in the following terms : 4. The Central Government may by notified order direct that the power to make orders under section 3 shall in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 in this Act. 15. It would be noticed that s. 4 of the Essential Supplies (Temporary Powers) Act, 1946, left it to the Central Government to decide three things; (1) the matters which can be delegated to the officers or authorities subordinate, (2) the conditions subject to which the power to make orders under s. 3 be exercised, and (3) the officers who would exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention 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 of the Commissioners Act and not by virtue of the notification. This Court was faced with a similar problem in Harishanker Bagla and Another v. The State of Madhya Pradesh 1954CriLJ1322 and repelled a similar contention in the following words : Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made under section 3 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 present set of cases there is proof of a public purpose. It is given in the affidavits made on behalf of the State and in the subsequent orders just quoted, namely to house the homeless. At that time the housing situation in Bombay was acute, largely due to the influx of refugees. Questions of public decency, Public morale, public health and the temptation to lawlessness and crime, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to be still provided with housing accommodation. The growth in population and the concentration of the population in a small area also led to the deterioration of public utility services as observed by the Study Group. The Study Group suggested a number of measures for relieving the congestion of population and industries in the Greater Bombay including the shifting of industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke 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 welfare is a matter of public concern. In our view the welfare of a large proposition of persons living in Bombay is a matter of public concern and the notifications served to enhance the welfare of this section of the community and this is public purpose. In conclusion we hold that the notifications are valid and cannot be impugned on the ground that they were not issued for any public purpose. 30. Mr. Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Officer, Bombay and Bombay Suburban District was notified as the person to perform the functions of a Collector under s. 5-A of the Act. After the proceedings under s. 5-A of the Act were over, the Commissioner issued another notification on October 7, 1963 under s. 6 of the Act. By this notification he declared that certain lands out of those notified under s. 4 were needed to be acquired at the public expense for the public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 reconstituted State of Bombay after the re-organisation of 1956, the word Commissioner was substituted for the State Government in various sections. Changes were also made in the Hyderabad Land Revenue Act (No. 8 of 1317 F.) and the Madhya Pradesh Land Revenue Code (No. 2 of 1955) to bring them into line with this Act and to provide for the office of Commissioner and its powers and duties. Besides these changes in the Land Revenue Code applicable to various areas in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grated 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 specify in the Schedule the necessary adaptations and modifications in that enactment by way of amendment. On such notification, such other enactment shall accordingly be amended and have effect subject to the adaptations and modifications so made, and the Schedule to the 1958 Act, shall be deemed to be amended by the inclusion therein of the said provision for amending the enactment. By sub-section (5) the State Government was given the power to cancel a notification made under sub-s. (4) and thereupon the relevant enactment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 connotation, which is fixed for all times. There can also be no doubt that it is not possible to lay down a definition of what public purpose is, particularly as the concept of public purpose may change from time to time. There is no doubt however that public purpose involves in it an element of general interest of the community and whatever furthers the general interest must be regarded as a public purpose. It is in the light of this concept of public purpose, which is not static and is changing from time to time and in which there must always be an element of general interest of the community that we have to look at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iring 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, assignment or sale ; but the provision does not stop there. It says that such lease, assignment or sale must be with the object of securing further development, and these words must be given some meaning. It is true that the words further development have not been defined, but that was bound to be so, for further development would depend upon the nature of the purpose for which the land is acquired. Of course, it is possible that further development can be made by the State itself or by the local authority which acquires the land; but we see no reason why the State or the local authority should not have the power to see that further development takes place even through private agencies by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 the object of further development by constructing houses where the scheme is for residential purpose. We have also no doubt that in imposing terms, the State or the local authority will see that the purpose for which the lease, assignment or sale is made is carried out within a reasonable time, failing which the land will revert to the State or the local authority. These matters are in our opinion implicit in the words with the object of securing further development , and we have no reason to think that the State or the local authority would just dispose of the land so acquired by lease or assignment or sale without caring to see that further development which was the basis of acquisition takes p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore 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 appropriate executive authority the power to make rules. But before doing so, the legislature itself enacts the law under which the power is delegated and lays down the essential policy of the Act and all such essential matters which require to be included in the Act itself. Having thus provided for all such essential matters in the enactment itself, the legislature leaves it to a subordinate authority which may be some appropriate executive authority to frame detailed rules to carry out the purposes of the Act. These rules are ancillary and subserve the purposes of the enactment. They cannot go against the provisions of the enactment and cannot in any manner make any change in the provision of the enactment and are merely for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 any power to the appropriate government to delete any entry from the schedule; it merely gave power to the appropriate government to add to the schedule and that delegation was upheld by this Court. It will thus be seen that the provision in sub-s. (3) by which the State Government is even given the power to delete any entry in the Schedule and withdraw if it wants to do so the power conferred on the Commissioner by the legislature is a very different matter from addition to the schedule which was permitted by the Minimum Wages Act. 49. It is clear that sub-s. (3) judged by the test of delegated legislation has gone far beyond what the legislature can do when it delegates its functions to an executive authority for making subor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 duties of an executive nature which were conferred and imposed on the State Government by laws referable to Lists II and III of the Seventh Schedule to the Constitution. It is also urged the all that the legislature intended by this provision in sub-section (4) was to confer on the State Government the power to delegate its own executive power under other enactments not specified in the Schedule to the Commissioner. We are unable to see on what principle we can read down this provision in this manner. Even if we look at the schedule as it was passed by the legislature we find that though mostly Commissioner was substituted for State Government in the enactments specified in the Schedule there are other provisions in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 who has not accepted the award made by the Collector. Sections 20 to 28 confer power on the court and impose duties on it when dealing with references. The Act was not one of the enactments mentioned in the Schedule as it was originally passed by the legislature. On the wide words used in sub-s. (4) it would be possible for the State Government to confer on the Commissioner the powers conferred on the court and duties imposed on it by s. 18 to s. 28 by substituting the word Commissioner for the word court in the relevant provisions. If that is the extent of the power conferred on the State Government by sub-s. (4) - (and we have no doubt that it is so) - it is not a case of providing merely for delegated legislation properly so-called but amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58 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 s. 3(4) of the 1958 Act has been upheld, namely, (i) Ganesh Narayan v. Commissioner, Nagpur Division AIR1965Bom92 , and (ii) Sadruddin Suleman Jhaveri v. Patwardhan AIR1965Bom224 . With respect we find that in these two cases no attempt has been made to construe the actual words used in s. 3(4) and it has been assumed that the section merely allowed the State Government to confer on the Commissioner powers and impose duties which have been conferred or imposed on the State Government under other enactments. We have construed the words used in s. 3(4) and we are of the opinion that this is not what they mean. The words are of very wide amplitude and as they stand they confer on the State Government power to amend any other Act and confer on the Commissioner powers and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 then) at p. 1009 in Re. Delhi Laws Act's case [1951]2SCR747 to repeal or abrogate an existing law is the exercise of an essential legislative power . The amendment of a particular law falls also in the same category, for an amendment in effect amounts to a partial repeal of the existing provision with, may be, substitution in its place of another provision. What the legislature has done in the present case is to give power to the executive to amend other laws as it thinks fit for the purpose of conferring powers on the Commissioner and this in our opinion is conferment of an essential legislative function on the executive which cannot be justified on the principles laid down in Re. Delhi Laws Act case [1951]2SCR747 . As we read s. 3(4), we are clearly of opinion that it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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