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PETITIONER: JAYANTILAL AMRIT LAL SHODHAN

       Vs.

RESPONDENT: F.N. RANA AND OTHERS

DATE OF JUDGMENT: 05/11/1963

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N. DAYAL, RAGHUBAR

CITATION:  1964 AIR  648            1964 SCR  (5) 294  CITATOR INFO :  F          1965 SC1619  (5)  RF         1967 SC 669  (25)  D          1971 SC 530  (96)  R          1971 SC1547  (7,8)  RF         1973 SC1461  (1041)  E&D        1974 SC2192  (41,42,43,46,141,142,143)  RF         1975 SC2299  (46,631)  D          1982 SC 149  (709)  RF         1987 SC2106  (2)

ACT: Constitution  of India, Arts. 258(1), 73(1)-Notification  by President entrusting functions to State Officer-If has force of  law-"Save  as expressly provided in  the  Constitution", interpretation  of-Delegation  of powers by  State  officer- "Enquiry and Report by   Collector"-  Nature  of  functions- Bombay Reorganisation Act,1960.....(11 of 1960),ss.2(d), 87- -Land Acquisition Act, 1894 (1 of 1894), ss. 4, 5A, 6.

HEADNOTE: The   President  of  India  issued  on  July  24,  1959,   a notification   under   Art.  258(1)  of   the   Constitution entrusting  with the consent of the Government of Bombay  to the  Commissioners of Divisions in the State of  Bombay  the functions  of  the  Central  Government  under  the  Act  in relation to the acquisition of land for the purposes of  the Union.  By the Bombay Reorganisation Act 11 of 1960, two new states were constituted and the Baroda division was allotted to the State of Gujarat.  Purporting to exerciser he  powers entrusted  by  the notification issued by the  President  on July 24, 1959, the Commissioner of Baroda Division  notified under  s.  4(1) of the Land Acquisition Act 1 of  1894,  the appellants’  land as being needed for a public purpose,  and authorised  the Special Land Acquisition Officer,  Ahmedabad to  perform  the functions of the Collector under  the  Act. After considering the objections raised by the appellant  to the  proposed  acquisition,  the  Special  Land  Acquisition Officer submitted his report to the Commissioner, who issued the  declaration  under s. 6(1) of the Act.   The  appellant

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thereupon  moved the High Court of Gujarat under  Arts.  226 and 227 of the Constitution for a writ but his petition  was dismissed.   The  case  of the appellant was  that  (1)  the President’s  notification under Art. 258(1) was  ineffective after  the partition since the consent of the Government  of the  newly  formed State of Gujarat to  the  entrustment  of functions to its officers had not been obtained as  required by  Art. 258(1); (2) the proceeding under s. 5A of  the  Act being  quasi-judicial  in  character, authority  to  make  a report thereunder could not be delegated by the Commissioner nor could he consider such a report when made. Held:(i)  (per  Gajendragadkar,  Shah  and  Dayal  JJ.) Article  258(1)  of the Constitution in effect  enables  the President  to do by notification what the Legislature  could do by legislation, namely, to entrust functions relating  to matters  to  which executive power of the Union  extends  to officers  named  in the  notification.   Such  notification, therefore, amends the Act in respect of which it is made  by substituting  as  it  were the  words  of  the  notification therein. 295 So  interpreted it cannot be said that the  notification  of the President had not the force of law within the meaning of s. 87 read with s. 2(d) of the Bombay Reorganization Act. It  cannot  be assumed simply because the President  is  the executive head of the Union that the exercise by him of  his power under Art. 258(1) has not the force of law. The Edward Mills Co. Ltd. v. State of Ajmer, [1955] 1 S.C.R. 735, relied on. Chanabasappa Shivappa v. Gurppadappa Murigappa, I.L.R.  1958 Mysore 48, approved. Article  258(1)  empowers the President to  entrust  to  the State  only  such executive functions as are vested  in  the Union and are exercisable by him on its behalf; it does  not authorise him to entrust such powers as are expressly vested in  the President by the Constitution and do not,  therefore fall within the ambit of Art. 258(1). The  executive power of the Union extends to all matters  in respect  of  which Parliament has power to make law  and  in respect of matters to which the power of Parliament extends. The expression "save as expressly provided in the  Constitu- tion"  in the proviso to Art. 73(1) is not susceptible of  a limited   interpretation.    A   constitutional    provision authorising the Union to exercise its power over matters  in respect  of  which the State Legislature has also  power  to make  law,  has operation not  withstanding  the  limitation enacted in the proviso. It is well settled that functions which do not fall strictly within  the field legislative or judicial, must fall in  the residuary class executive and be regarded as such. (ii)The Indian Constitution does not make a rigid  division of  functions  and although it is possible  to  characterise with  precision  that an agency of the State  is  executive, legislative or judicial, it cannot be said that a particular function  exercised  by any  individual  agency  necessarily bears the character of the agency exercising the functions. Rai  Sahib  Ram Jawaya Kapur v. State of  punjab,  [1955]  2 S.C.R.  225 and Harinagar Sugar Mills Ltd.  v.  Shyamsundar, [1962] 2 S.C.R. 339, referred to. The  enquiry  made  by the Collector is not  a  judicial  or quasijudicial  enquiry and the report made by the  Collector under  s. 5A of the Land Acquisition Act is  administrative. The Commissioner therefore in appointing the Additional Land Acquisition Officer as the Collector or acting on his report in  pursuance  of  the functions entrusted  to  him  by  the

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notification acted within the authority conferred on him. Per Subba Rao and Wanchoo, JJ.-Article 258(1) interpreted in the light of the scheme and setting in which it appears  and the  language it uses, clearly indicates that in giving  the President the 296 power  to  entrust his functions, it  is  contemplating  the entrustment of the executive functions of the Union only and no other.  The ’functions’ occurring in the Article, even if not expressly qualified by the word ’executive’, must in the context  mean functions of the same nature as the  executive power of the Union. The  words  ’entrust  functions’ and ’with  the  consent  of indicate  that in entrusting his functions the President  is creating an agency which is more in consonance with carrying out the executive power of the Union. Article 258(1) is, therefore, capable of one meaning,  viz., that   it  enables  the  President  to  entrust  the   State Government  or its officers, with its consent, to carry  out functions  which  appertain to the executive  power  of  the Union  vesting  in  him  and no other  kind  of  power.   It delimits not merely the field which ordinarily must be  List I  of  the  Seventh  Schedule but also  the  nature  of  the functions which must be executive. Amir Khan v. State, I.L.R. [1962] 2 All. 310, disapproved. The basic concept of law is that it should consist of a body of  rules  which govern the conduct of persons  forming  the community  in which it is enforced and which that  community enforces through necessary machinery. So  judged, the notification issued by the  President  under Art.  258(1)  of the Constitution has not the force  of  law within  the  meaning  of  ss. 2(d)  and  87  of  the  Bombay Reorganisation  Act, 1960.  It is merely an executive  order with  the  authority  of  law behind.   In  order  that  the notification  or order may have the force of law it  has  to contain a rule or body of rules regulating the conduct of  a person  or persons that can be enforced in a court  of  law, having been passed by a body authorised to do so. ’Authority of law’ must be distinguished from ’the force  of law’ and every order that has the authority of law behind it would not be one having the force of law unless it  complies with  the  basic  concept  of  law.   An  order  having  the authority  of law behind it may be recognised by courts  but unless  it  prescribes a rule of conduct which a  person  or persons  must  obey there can be no question  of  its  being enforced by a court of law or other authority. It is not correct to say that when the Government names  the authority Which will make the rules, its order has the force of law.  In so naming the Government performs an executive function. The  notification of the President under Art. 258(1)  is  an executive order which the courts must recognise and an order of  the Commissioner of a Division in pursuance of  it  will have the same effect as the order of the Central Government. But  it cannot be said that a notification of the  President under  Art.  258(1)  effects  an amendment  of  the  law  in connection with which the order is 297 made.   It  was  therefore,  not correct  to  say  that  the definition  of appropriate Governments s. 2(ee) of  the  act was amended because of the notification in question. The Edard Mills Co. Ltd. v. State of Ajmer, [19551 1  S.C.R. 735, distinguished. Madhubhai  Amathalal  Gandhi  v. Union of  India,  [1961]  1 S.C.R.  191,  Public Prosecutor v. Illur  Thippayya,  I.L.R.

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[19491 Mad. 371, King Emperor v. Abdul Hamil, (1923)  I.L.R. 11  Pat.  134  and Ramendrachandra Ray  v.  Emperor,  (1931) I.L.R. XVIII Cal. 1303, held inapplicable. State  of Bombay v. F.N. Balsara, [1951] S.C.R. 682,  consi- dered. Chanabassapa  Shivappa Tori v. Gurupadappa  Murgeppa  Hanji, I.L.R. [19581 Mys. 48 and Haji  K.K. Modu v. Food  Inspector Kozhikode, I.L.R. [1961] Kerala 639, doubted. The notification not being law was not saved under s. 87 and the Commissioner of Baroda Division, therefore, had no power tact under the notification in question since it had not the consent  of the State of Gujarat and his  notifications  for acquisition of the property must be struck down.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 104 of 1963. Appeal from the judgment and order dated September 14, 1962, of  the Gujarat High Court in Special Civil Application  No. 145 of 1961. G.S.  Pathak,  G. Dutta, J.B. Dadachanji,  O.C.  Mathur  and Ravinder Narain, for the appellant. C.K.  Daphtary,  Attorney-General,  N.S.  Bindra  and   R.H. Dhebar, for the respondents. November 5, 1963.  The Judgment of P.B. Gajendragadkar, J.C. Shah  and  Raghubar Dayal JJ. was delivered by Shah  J.  The dissenting  Opinion  of K.N. Wanchoo and Subba Rao  JJ.  was delivered by Wanchoo J. SHAH J.-By notification published on September 1, 1960 under s.  4(1)  of  the  Land  Acquisition  Act  1  of  1894,  the Commissioner, Baroda Division, State of Gujarat,  exercising functions  entrusted to him under a notification dated  July 24, 1959, issued by the President, under Art. 258(1) of  the Constitution,  notified that a piece of land Part  of  Final Plot No. 686, Ellis 298 Bridge Town Planning Scheme, belonging to the appellant  was likely to be needed for a public purpose viz.,  construction of a Telephone Exchange Building in Ellis Bridge, Ahmedabad. Notice was thereafter served by the Additional Special  Land Acquisition  Officer,  Ahmedabad (who was appointed  by  the order  of  the Commissioner to perform the  functions  of  a Collector),  upon  the  appellant under s.  5A  of  the  Act inviting  objections  to the acquisition of the  land.   The appellant filed objections to the proposed acquisition.  The Additional  Special Land Acquisition Officer  submitted  his report to the Commissioner, who issued a notification  dated January 11, 1961, under s. 6(1) of the Land Acquisition Act, declaring   that  the  land  notified  under   the   earlier notification  was required for the public purpose  specified in  col. 4 of the schedule and that the  Additional  Special Land Acquisition Officer, Ahmedabad, was appointed under cl. (e)  of s. 3 to perform the functions of the  Collector  for all  proceedings to be taken in respect of the land  and  to take  order  under s. 7 of the Act for  acquisition  of  the land. The  appellant  then moved the High Court of  Gujarat  under Arts.  226  and  227  of the  Constitution  for  a  writ  of mandanius  or  other  appropriate write  setting  aside  the notifications dated September 1, 1960, and January 11, 1961, and  the  proceedings under s. 5A of  the  Land  Acquisition Act,1 of 1894, held in respect of the land of the  appellant and  the decision of the Commissioner Baroda  Division,  and for  a  writ setting aside the  notification  dated  January

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19,1961,  under s. 6(1) of the Land Acquisition Act and  for interim  relief.   This petition was dismissed by  the  High Court.   With certificate of fitness under Arts. 132(1)  and 133  (1)(c) of the Constitution granted by the  High  Court, this appeal has been preferred. In  this  appeal counsel for the appellant  has  raised  two contentions:- (1)  That  the  Commissioner  had in  the  events  that  had happened no power to issue the notifications under ss. 4 and 6 of the 299 Land Acquisition Act, 1 of 1894, purporting to act upon  the notification issued by the President-on July 24, 1959, under Art. 258(1) of the Constitution entrusting the functions  of the Union Government relating to acquisition of land to  the Commissioners  of Divisions in the State of Bombay,  because those  functions could not be performed after the  State  of Bombay  ceased to exist, and the State of Gujarat came  into existence,  and the consent of the Government of the  latter State  to the entrustment of functions to its  officers  had not been obtained; and (2)     that  the  proceeding  under  s.  5A  of  the   Land Acquisition  Act being quasi-judicial, authority to  make  a report  under  that section could not be  delegated  by  the Commissioner,  and  that the report made by  the  Additional Special  Land Acquisition Officer could not in any event  be considered by the Commissioner. It may be useful to set out certain statutory provisions  in the  context of the relevant constitutional set up.  By  the Constitution  as  amended  by  the  Seventh   Constitutional Amendment  Act,  1956,  legislative  power  in  respect   of acquisition  and requisitioning of report is  vested.  under entry 42 in the Concurrent List in the Union Parliament  and the State Legislatures.  But by virtue of Art. 372, the Land Acquisition Act 1 of 1894 relating to compulsory acquisition of  land for public purposes continues to remain  in  force. The  Land  Acquisition  Act,  1  of  1894,  authorises   the appropriate Government by s. 4(1) to publish the preliminary notification  that  land  in any locality is  likely  to  be needed  for any public purpose, and upon the publication  of such  a  notification  the  officers  either  generally   or specially  authorised by the appropriate Government in  that behalf  are  clothed with authority, among other,  to  enter upon  and  survey the land and to do all acts  necessary  to ascertain  whether the land is adapted for the  purpose,  to set out the boundaries by placing marks and cutting 300 trenches  etc.  The expression "appropriate  Government"  is defined  by cl. (ee) of s. 3 in relation to  acquisition  of land for the purposes of the Union, the Central  Government, and  in  relation  to  acquisition of  land  for  any  other purposes,  the State Government.  Any person  interested  in any land notified under s. 4(1) may within thirty days after the  issue  of  the notification object in  writing  to  the acquisition  of the land or of any land in the locality,  as the case may be.  The Collector must give to the objector an opportunity to be heard and after hearing such objection and making such further inquiry, if any, as he thinks necessary, he has to submit the case to the appropriate Government with a  report containing his recommendations on the  objections. The decision of the appropriate Government on the report  is made  final  by  sub-s.  (2)  of  s.  5A.   The   expression "Collector"  is defined in s. 3(c) as meaning the  Collector of  a district, and includes a Deputy Commissioner  and  any officer specially appointed by the appropriate Government to

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perform the functions of a Collector under the Act.  By s. 6 the   appropriate  Government  is  authorised  to   make   a declaration,  if  the appropriate  Government  is  satisfied after considering the report under s. 5A sub-s. (2) that any particular  land  is  needed  for  a  public  purpose.   The declaration  so  made is by sub-s. (3) of  s.  6  conclusive evidence that the land is needed for a public purpose or for a  Company,  as the case may be.  By s.  7  the  appropriate Government  or  an  officer  appointed  by  the  appropriate Government in that behalf, may direct the Collector to  take order for the acquisition of the land declared to be  needed and  the  Collector then causes public notice  to  be  given informing the parties concerned that the Government  intends to   take  possession  of  the  land  and  that  claims   to compensation  for all interests in such land may be made  to him.   He  then  holds an inquiry into  the  nature  of  the interest  of  the  person  claiming  compensation,  and  the objections to the measurement of the land to be acquired and to make an award setting out the true area of the land,  the compensation which in his opinion should 301 be   allowed  for  the  land,  and  the   apportionment   of compensation   among  persons  known  or  believed   to   be interested  of whose claims he has information: (ss. 9  &  1 1).   It is clear from this brief resume that where land  is acquired  for  the  purposes  of  the  Central   Government, notification under Ss. 4 and 6 may be issued by the  Central Government and inquiries may be made under ss. 5A and 9  and compensation awarded by an Officer designated by the Act  as the  Collector,  who  in the case  of  acquisition  for  the purposes of the Union would normally be an officer specially appointed in that behalf by that Government. In  exercise  of  the powers conferred by Art.  258  of  the Constitution the President of India on July 24, 1959, issued a  notification  entrusting with the consent  of  the  State Government  of Bombay, to the Commissioners of Divisions  in the State of Bombay, the functions of the Central Government under  the  land Acquisition Act 1 of 1894, in  relation  to acquisition of land for the purpose of the Union within  the limits   of  the  territorial  jurisdiction  of   the   said Commissioners subject to the same control by the  Government of  Bombay  as  is from time to  time  exercisable  by  that Government  in  relation  to acquisition  of  land  for  the purpose  of the State.  At the date of the notification  the territory which now forms the State of Gujarat and in  which the  land  in dispute is situate was part of  the  State  of Bombay, but on May 1, 1960,-----called the appointed  day-as a result of the reorganisation of the State of Bombay  under the Bombay Reorganisation Act, 1960, out of the territory of that  State,  two  States  were  carved  out-the  State   of Maharashtra  and  the State of Gujarat,  and  the  territory covering  the Baroda Division was allotted to the  State  of Gujarat.   To  ensure a smooth bifurcation of the  State  of Bombay, provisions relating to the continuance in office  of the  officers in the same posts which they  occupied  before the appointed day, and maintaining the territorial extent of laws were enacted.  Section 82 of the Bombay  Reorganisation Act, 1960, enacted that every person who, imme- 302 diately before the appointed day, is holding or  discharging the  duties  of any post or office in  connection  with  the affairs of the State of Bombay in any area which on that day falls  within  the State of Maharashtra  or  Gujarat  shall, subject  to an order by a competent authority,  continue  to hold  the  same post or office in that State  and  shall  be

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deemed, as from that day, to have been duly appointed to the post  or office by the Government of, or  other  appropriate authority  in that State.  By s. 87 provision was  made  for maintaining  the territorial extent of the laws  even  after the appointed day.  It was enacted that provisions of’  Part 11 (i.e. provisions relating to the reorganisation of Bombay State into two States) shall not be deemed to have  effected any  change  in the territories to which any  law  in  force immediately before the appointed day extends or applies, and territorial  references  in  any such law to  the  State  of Bombay  shall,  untill  otherwise provided  by  a  competent Legislature  or other competent authority, be  construed  as meaning the territories within that State immediately before the appointed day.  By s. 2(d) of the Bombay  Reorganisation Act,  1960,  the expression "law"  includes  any  enactment, ordinance, regulation, order, bye-law, rule, scheme, notifi- cation  or other instrument having, immediately  before  the appointed day, the force of law in the whole or in any  part of the State of Bombay. The  notification issued by the President of India  on  July 24,  1959,  under  Art. 258(1) in  terms  entrusted  certain functions   under   the   Land  Acquisition   Act   to   the Commissioners of Divisions in the State of Bombay and it was recited therein that the consent to such entrustment of  the State Government of Bombay had been obtained.  It is  common ground  that before the date of the notification  issued  by the Commissioner, Baroda Division, who was then  functioning as  an  officer of the State of Gujarat, under s. 4  of  the Land  Acquisition  Act  no order  expressly  entrusting  the functions of the Union Government under the Land Acquisition Act to any officer in the 303 State  of  Gujarat  was issued by  the  President,  and  the authority  of the Commissioner to notify for acquisition  of the  land of the appellant was sought to be  derived  solely from ss. 82 and 87 of the Bombay Reorganisation Act. The  appellant contended that the power exercisable  by  the President being executive in character, the functions  which may  be entrusted to a State Government or to an officer  of that State under Art. 258(1) are executive, and  entrustment of  such  executive  authority not being  "law"  within  the meaning  of  S.  87 of the Bombay  Reorganisation  Act,  the Commissioners of the new State of Gujarat after May 1, 1960, were   incompetent,   by   virtue   of   the    Presidential notification,  to  exercise  the  functions  of  the   Union Government under the Land Acquisition Act.  Support to  this plea  was sought to be derived from the division of part  XI of the Constitution into Ch.  1 containing Arts. 245 to  255 dealing  with distribution of legislative powers and Ch.  11 containing  Arts.  256 to 261 dealing  with  "administrative relations  between  the States", and it was  submitted  that Art. 258, occurring as it does in Ch. 11 of Part XI, must be deemed to deal with matters administrative or executive  and not  legislative.  Founding the argument upon the  title  of Ch. 11 and the character of the two preceding Arts. 256  and 257 dealing with the exercise of the executive power of  the State  so  as  to ensure compliance with the  laws  made  by Parliament, and in a manner so as not to impede or prejudice the  exercise  of  the executive power of  the  Union  which extends to the giving to the State Governments directions as may be necessary for that purpose, it was claimed that  Art. 258  deals with the entrustment of executive  functions  and that  entrustment  of executive  functions  by  notification issued  by  the President cannot amount to law,  within  the meaning of s. 87 of the Bombay Reorganisation Act.

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The  plea  about the placing of Art. 258 in Ch. 11  and  the character of the two preceding Articles as indicative of the character of the powers conferred 304 by  Art. 258(1) is not at all decisive: for cl. (2) of  Art. 258,  and cl. (3) of Art. 261, which occur in Ch.  11,  deal with  matters legislative and judicial.  At this stage  Art. 258 may be set out: "(1)  Notwithstanding  anything in  this  Constitution,  the President  may,  with  the consent of the  Government  of  a State,  entrust either conditionally or  unconditionally  to that Government or to its officers functions in relation  to any  matter  to  which  the executive  power  of  the  Union extends. (2)..A  law  made by Parliament which applies in  any  State may,  notwithstanding  that  it relates  to  a  matter  with respect  to which the Legislature of the State has no  power to make laws, confer powers and impose duties, or  authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities there of. (3)  Where by virtue of this article powers and   duties have been conferred or imposed upon     a State or  officers or   authorities  thereof,  there  shall  be  paid  by   the Government of India to the State such sum as may be  agreed, or,  in  default of agreement, as may be  determined  by  an arbitrator  appointed  by  the Chief Justice  of  India,  in respect  of any " extra costs of administration incurred  by the  State in connection with the exercise of  those  powers and duties." By the first clause, the President is authorised to  entrust with the consent of the State Government, to that Government or its officers functions in relation to any matter to which the executive power of the Union extends.  Clause (2)  deals with the exercise of legislative authority of Parliament  in matters  exclusively within its competence to confer  powers and impose duties upon the State or officers and authorities thereof.  Clause (3) provides for payment of sums determined in  the  manner prescribed by the Union for  the  burden  of extra costs incurred by the State 305 in connection with the performance of duties and exercise of powers conferred or imposed by virtue of Art. 258. The High Court held that the entrustment of functions  under Art.  258(1) did not fall within the executive power of  the Union.   In the view of the High Court functions which  were not  judicial  or  legislative  would  not  necessarily   be regarded as executive, and that certain functions which  did not   fall   within   the   three   recognised   categories- legislative,  judicial and executive, may be placed  in  the category  of  miscellaneous functions.  But it is  now  well settled that functions which do not fall strictly within the field  legislative or judicial, fall in the residuary  class and must be regarded as executive. In Halsbury’s Laws of England, 3rd Edn.  Vol. 7, Art. 409 p. 192 it is observed: "Executive   Functions   are  incapable   of   Comprehensive definition, for they are merely the residue of the functions of government after legislative and judicial functions  have been taken away.  They include, in addition to the execution of   the  laws,  the  maintenance  "of  public  order,   the management of Crown property and nationalised industries and services,  the direction of foreign policy, the  conduct  of military  operations,  and the provision or  supervision  of such  services as education, public health,  transport,  and state assistance and insurance."

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Similarly in Wade and Phillips, Constitutional Law, 6th Edn, at p. 16 it is observed: "It  is  customary to divide functions  of  government  into three  classes, legislative, executive  (or  administrative) and judicial." In  Rai Sahib Ram Jawaya Kapur v. The State of punjab(1)  in dealing  with the question whether publishing, printing  and selling  of  text  books  for the use  of  students  may  be regarded as an executive function of the State (1) [1955]2 S.C.R. 225. 1/SCI/64-20 306 Government, Mukherjea C.J., speaking for the Court observed: "It may not be possible to frame an exhaustive definition of what  executive function means and implies.  Ordinarily  the executive   power  connotes  the  residue  of   governmental functions   that  remain  after  legislative  and   judicial functions are taken away." It cannot however be assumed that the legislative  functions are  exclusively  performed by  the  Legislature,  executive functions  by  the executive and judicial functions  by  the judiciary alone.  The Constitution has not made an  absolute or rigid division of functions between the three agencies of the   State.   To  the  executive,  exercise  of   functions legislative  or judicial are often entrusted.  For  instance power  to frame rules, regulations and  notifications  which are  essentially  legislative  in  character  is  frequently entrusted to the executive.  Similarly judicial authority is also  entrusted by legislation to the  executive  authority: Harinagar  Sugar  Mills  Ltd.  v.  Shyamsundar(1).   In  the performance  of the executive functions, public  authorities issue orders which are not far removed from legislation  and make decisions affecting the personal and proprietary rights of  individuals which are quasi-judicial in  character.   In addition  to  these  quasi-judicial,  and  quasi-legislative functions, the executive has also been empowered by  statute to exercise functions which are legislative and judicial  in character,  and in certain instances, powers  are  exercised which  appear to partake at the same moment of  legislative, executive  and judicial characteristics.  In the  complexity of  problems which modern governments have to face  and  the plethora  of parliamentary business to which  it  inevitably leads, it becomes necessary that the executive should  often exercise powers of subordinate legislation: Halsbury’s  Laws of  England,  Vol. 7, Art. 409.  It is  indeed  possible  to characterise  with precision that an agency of the State  is executive,  legislative  or  judicial,  but  it  cannot   be predicated (1)  [1962] 2 S.C.R. 339. 307 that  a  particular  function exercised  by  any  individual agency  is  necessarily of the character which.  the  agency bears. But  it  is  not necessary to dilate  upon  this  matter  in detail.   For  the purpose of this case it  would  serve  no useful  purpose  to decide whether under Art.  258(1)  by  a Presidential  notification only executive functions  of  the Central  Government may be entrusted to the State or  to  an officer of the State.  By the notification in question  only "the  functions  of the Central Government  under  the  Land Acquisition  Act  1 of 1894, in relation to  acquisition  of land  for the purpose of the Union" have been  entrusted  to the  Commissioners of Divisions.  The power  exercisable  by the   appropriate  Government  under  s.  55  of  the   Land Acquisition  Act to frame Rules under the Act has  not  been

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entrusted to the Commissioner.  Whether such a function  can be entrusted does not call for examination in this case.  An argument  advanced at the Bar which proceeded upon an  erro- neous premise about the field in which Art. 258(1)  operates may  however be noticed.  That clause enables the  President to  entrust to the State the functions which are  vested  in the  Union,  and which are exercisable by the  President  on behalf of the Union: it does not authorise the President  to entrust to any other person or body the powers and functions with   which  he  is  by  the  express  provisions  of   the Constitution as President invested.  The power to promulgate Ordinances  under  Art. 123; to suspend  the  provisions  of Arts. 268 to 279 during an emergency; to declare failure  of the  Constitutional machinery in States under Art.  356;  to declare a financial emergency under Art. 360; to make  rules regulating  the  recruitment and conditions  of  service  of persons  appointed to posts and services in connection  with the  affairs of the Union under Art. 309-to enumerate a  few out  of  the  various powers-are not  powers  of  the  Union Government; these are powers vested in the President by  the Constitution  and  are  incapable  of  being  delegated   or entrusted to any other body or authority 308 under  Art. 258(1).  The plea that the very nature of  these powers  is  such  that  they could not  be  intended  to  be entrusted  under Art. 258(1) to the State or officer of  the State,  and  therefore  that  clause  must  have  a  limited content,  proceeds  upon an obvious fallacy.   Those  powers cannot  be delegated under Art. 258(1) because they are  not the  powers of the Union, and not because of  their  special character.    There  is  a  vast  array  of   other   powers exercisable by the President-to mention only a  few-appoint- ment of Judges : Arts. 124 & 217, appointment of  Committees of   Official  Languages  Act:  Art.  344,  appointment   of Commissions  to investigate conditions of backward  classes: Art.  340,  appointment  of Special  Officer  for  Scheduled Castes  and  Tribes: Art. 338, exercise of his  pleasure  to terminate  employment:  Art. 310, declaration  that  in  the interest of the security of the State it is not expedient to give  to  a  public  servant  sought  to  be  dismissed   an opportunity contemplated by Art. 311(2)-these are  executive powers  of  the  President  and  may  not  be  delegated  or entrusted  to  another body or officer because they  do  not fall within Art. 258. The  question  which  must  be  considered  is  whether  the notification  issued  by  the President is  law  within  the meaning   of  s.  87  read  with  s.  2(d)  of  the   Bombay Reorganisation  Act,  11 of 1960.  It is  necessary  in  the first instance carefully to analyze the three stages of  the constitutional  process leading to the ultimate exercise  of function of the Union Government, by the State or an officer of  the State to whom the function is entrusted.  The  three stages are- (i)  conferment  of power upon the President as the bead  of the Union to exercise the functions of the Union; (ii) entrustment  of  the function by the President  to  the State Government or an officer of the State Government; (iii)exercise  of  the  function by the  State  or  its officer, on behalf of the Union. 309 By  Art.  258(1) the President as the head of the  Union  is competent to entrust functions in relation to any matter  to which the executive power of the Union extends to any  State Government,  or  officer  of  that  Government.   These  are functions  of the Union and not of the President.  There  is

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no doubt that the investment of power or authority upon  the President  is part of the Constitution and  has  necessarily the force of law.  There is however controversy between  the parties  about the true character of the entrustment of  the functions  by the President.  The character of the  exercise of  the function so entrusted must depend upon the field  in which it operates and its impact upon the citizens’ rights. The  President  is  authorised by  Art.  258(1)  to  entrust functions  with  which  the Union  Government  is  invested, provided  the  functions are in relation to  any  matter  to which  the executive power of the Union extends.  By  virtue of  Art. 367, the General Clauses Act, 1897, applies to  the interpretation  of  the  Constitution  and  s.  (8)  defines "Central Government" by cl. (b) in relation to anything done or to be done after the commencement of the Constitution, as meaning the President and includes in relation to  functions entrusted  under cl. (1) of Art. 258 of the Constitution  to the  Government  of  a State, the  State  Government  acting within  the  scope of the authority given to it  under  that clause.   By  Art. 53 the executive power of  the  Union  is vested  in  the President and is exercisable by  him  either directly   or  through  officers  subordinate  to   him   in accordance with the Constitution and the executive power  of the  Union by Art. 73 extends subject to the  provisions  of the Constitution: (a)to the matters with respect to which Parliament has power to make laws; and (b)  to   the  exercise  of  such  rights,   authority   and Jurisdiction  as are exercisable by the Government of  India by virtue of any treaty or agreements: 310 Provided that the executive power referred to in sub-cl. (a) shall not, save as expressly provided in the Constitution or in  any  law  made by Parliament, extend  in  any  State  to matters  with respect to which the Legislature of the  State has  also  power to make laws. Prima  facie,  the  executive power  of the Union extends to all matters with  respect  to which  Parliament has power to make laws and in  respect  of matters  to which the power of the Parliament  extends.   It was  claimed  that  by the use of the  expression  "save  as expressly provided in the Constitution" it was intended that unless a provision in the Constitution expressly enacts that the executive power of’ the Union shall, within the  meaning of  Art.  73(1) proviso, extend to a matter  in  respect  of which  the  Legislature of a State has also  power  to  make laws,  that  provision cannot exclude the operation  of  the proviso  to  Art.  73(1).  But the  expression  "   save  as expressly  provided in the Constitution" is not  susceptible of   that  limited  interpretation.   A  provision  in   the Constitution conferring authority upon the Union to exercise its powers in matters with respect to which the  Legislature of  the  State has also power to make  laws,  operates  not- withstanding the limitation enacted by the proviso.  Article 298,  which, inter alia, extends the power of the  Union  to the  "acquisition" of property, is one such provision.   Our attention has not been invited to any provision which  makes an  enactment  of the nature suggested by  counsel  for  the appellant  excluding  the operation of the proviso  to  Art. 73(1).   Articles 353, 360(3), 339(2), 256 and 257 on  which reliance   was  placed,  merely  enact  provisions  in   the Constitution for giving directions to the State  Governments in  respect of certain specified matters or  purposes.   The form in which these provisions are couched do not  expressly provide that within the field of their operation Art.  73(1) proviso  will  not apply.  The language used, on  the  other

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hand,  supports  the view that power is conferred  upon  the Union to do certain things falling within the limits of  the executive  power, even though normally the power in  respect of that matter may be exercised by the State Legislature 311 by virtue of the legislative entry to which it relates.   It is  therefore open to the President, subject to the  proviso to  cl.  (1)  of  Art. 73, with the  consent  of  the  State Government, to entrust executive power of the Union relating to  acquisition of land either to the State or any  officers of the State. We are in this appeal not concerned to ascertain whether the exercise  of powers entrusted to the State or  its  officers has  the force of law.  We are directly concerned  with  the nature  of the power exercised by the President  under  Art. 258(1)  entrusting functions to the State or  its  officers. The  President  is indisputably the executive  bead  of  the Union,  but  it cannot be assumed on that account  that  the exercise  of power by him under Art. 258(1) cannot have  the effect  of  law within the meaning of s. 87  of  the  Bombay Reorganisation  Act.   By the notification  dated  July  24, 1959,  issued by the President, power was entrusted  to  the Commissioner,   Baroda  Division,  in  respect  of   matters relating  to acquisition of land under the Land  Acquisition Act, 1894.  By item 42, List 111, the subject of acquisition of  property falls within the Concurrent List and the  Union Parliament has power to legislate in respect of  acquisition of  property for the purpose of the Union, and by virtue  of Art.  73 (1)(a) the executive power of the Union extends  to the  acquisition of property for the Union.  By Art. 298  of the Constitution the executive power of the Union extends to the  carrying  on  of  any trade  or  business  and  to  the acquisition, holding and disposal of property and the making of contracts for any purpose.  The expression  "acquisition, holding  and disposal of property" would, in  our  judgment, include  compulsory  acquisition  of property.   That  is  a provision  in the Constitution which within the  meaning  of the  proviso  to  Art. 73(1)  expressly  provides  that  the Parliament   may   acquire  property  for  the   Union   and consequently  executive  power of the Union in  relation  to compulsory  acquisition of property is saved thereby,  power of the State to acquire land notwithstanding. 312 In  this  background  we  may consider  the  effect  of  the Presidential  notification.  It cannot be and has  not  been denied  that  it was open to the Legislature  by  making  an express provision in the Act to entrust the functions of the Central  Government  that  is to confer  powers  and  impose duties under Art. 258(2) in relation to matters under ss. 4, 5A,  7,  9 and 11 and related sections to  Commissioners  of Divisions in the State.  Such entrustment of power would not be open to challenge on the round that it was  unauthorised. If  entrusted by enactment, it would have the force of  law. It  was  open to the Parliament by  appropriate  legislation incorporated  in  the Land Acquisition Act or  otherwise  to provide that the power to issue notifications under ss. 4  & 6 of the Land Acquisition Act, and to appoint the Collector, be  exercised by an officer to be named by  the  appropriate Government.   Issue  of a notification  by  the  appropriate Government  designating the officer to exercise  the  powers would  unquestionably  have  the force of  law,  within  the meaning  of s. 2(d).  Instead of making detailed  provisions and cataloging the entrustment of functions in the different statutes  which may be entrusted to the authorities  of  the State by the exercise of legislative power, the Constitution

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has  invested  the President with authority to  entrust  the functions to the Government of the State or their  officers. The  effect  of  Art. 258(1) is merely  to  make  a  blanket provision enabling the President by notification to exercise the   power   which  the  Legislature  could   exercise   by legislation,  to  entrust functions to the  officers  to  be specified in that behalf by the President and subject to the conditions prescribed thereby.  By the entrustment of powers under  the statute, the notification merely  authorises  the State  or an officer of the State in the  circumstances  and within  the  limits  prescribed to  exercise  the  specified functions.  Effect of the Presidential notification is that, wherever  the expression "appropriate Government" occurs  in the  Act in relation to provisions for acquisition  of  land for  the  purposes  of the  Union,  the  words  "appropriate Government or the Commis- 313 sioner of the Division having territorial jurisdiction  over the  area in which the land is situate", were deemed  to  be substituted.    In  other  words,  by  the  issue  of-   the Presidential notification, the Land Acquisition Act must  be deemed  pro tanto amended.  It would be difficult to  regard such an amendment as not having the force of law. In this connection we may refer to the decision of     this Court in The Edward Mills Company Ltd. v.    The  State   of Ajimer(1),   which  illustrates  the  view  which  we   have expressed. it was held in the Edward Mills’ case(1) that  an order  made under s. 94(3) of the Government of  India  Act, 1935,  was, notwithstanding the repeal of the Government  of India  Act,  1935, by Art. 395 of the Constitution,  law  in force.  By s. 94(3) of the Government of India Act, 1935.  a Chief Commissioner’s Province had to be administered by  the Governor-General  acting  to such extent as  he  thinks  fit through the Chief Commissioner to be appointed by him in his discretion.   On  March  16, 1949,  the  Central  Government issued  a  notification in exercise of its powers  under  s. 94(3)  of the Government of India Act, 1935, directing  that the  functions  of  the  appropriate  Government  under  the Minimum  Wages  Act, 11 at 1948, would in respect  of  every Chief  Commissioner’s  Province be exercised  by  the  Chief Commissioner.   Alter the commencement of  the  Constitution the  Chief  Commissioner of Ajmer purporting to act  as  the appropriate Government published a notification in terms  of s. 27 of the Act of his intention to include "employment  in the  textile mills" as an additional item in Part 1  of  the Schedule,  and issued the final notification directing  that "the  employment in textile industry" be added in Part 1  of the  schedule.   The  validity of the orders  of  the  Chief Commissioner  was  challenged on the ground,  among  others, that the order of the Governor-General under s. 94(3) of the Government  of India Act was not "law in force"  within  the meaning of Art. 372 of the Constitution.  It was urged  that without delegation of fresh authority by the President under (1)  [1955] 1 S.C.R. 735. 314 Art.  239  of the Constitution, the  Chief  Commissioner  of Ajmer  was  not  competent,  after  the  enactment  of   the Constitution,  to  function as tile  appropriate  Government under the Minimum Wages Act and therefore all steps taken by the  Chief  Commissioner  under the provisions  of  the  Act including  the  issue of the final notification  fixing  the minimum  rates  of wages for the employment in  the  textile mills  in  the State of Ajmer was illegal and  ultra  vires. The  question which therefore fell to be determined  in  the Edward  Mills’  case(,) was whether the order  made  by  the

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Central Government under s. 94(3) of the Government of India Act,  1935, could be regarded as "law in force"  within  the meaning of Art. 372 of the Constitution.  It was urged  that an order may fall within the definition of existing law  but it  cannot be included within the expression "law in  force" in Art. 372 of the Constitution.  Mukherjea J., speaking for the  Court  in  that case observed that there  was  no  dis- tinction between the expression "existing law" used in  Art. 366(1)  and the expression "law in force" occurring in  Art. 372  of the Constitution, that the words "law in  force"  as used  in  Art. 372 are wide enough to include not  merely  a legislative  enactment but also a regulation or order  which haS  the  force  of  law, and that  an  order  made  by  the Governors-General   under  s.  94(3)  investing  the   Chief Commissioner  with  authority to administer  a  province  is really  in  the  nature of a  legislative  provision,  which defines  the rights and powers of the Chief Commissioner  in respect  of that province falls within the purview  of  Art. 372 of the Constitution and being "law in force" immediately before  the  commencement of the Constitution  continues  to remain in force under cl. (1) of the Article.  In our  view, the  Edward Mills’ case( ) strongly supports the  conclusion that  the  notification issued by the  President  conferring authority  upon the Commissioner to exercise the  powers  of the appropriate Government in the matter of land acquisition under the Land Acquisition Act has the force of law  because even though issued by an execu- (1)  [1955] 1 S.C.R. 735. 315 tive  authority,  the Courts are, if  challenged,  bound  to recognise and give effect to the authority conferred by  the notification.   We see no distinction in  principle  between the notification which was issued by the Governor-General in Edward  Mills’ case(1), and the notification with  which  we are  dealing  in this case.  This is not to say  that  every order issued by an executive authority has the force of law. If tile order is purely administrative, or is not issued  in exercise  of  any statutory authority it may  not  have  the force  of law.  But where a general order is issued even  by an executive authority which confers power exercisable under a  statute, and which thereby in substance modifies or  adds to  the statute, such conferment of powers must be  regarded as having the force of law. In  Chanabasappa  Shivappa  v. Gurupadappa  Murigappa  (2  ) decided by the Mysore High Court under s. 119 of the  States Reorganisation  Act, 1956, which in terms  is  substantially the  same as s. 87 of the Bombay Reorganisation  Act,  1960, and the definition of ’law’ as given in s. 2(h) of that  Act is  in terms identical with the definition given in s.  2(d) of  the  Bombay  Reorganisation  Act,  the  operation  of  a notification  issued by the Government of Bombay  conferring powers  to try election petitions under the Bombay  District Municipal  Act, 1901, after the reorganisation of the  State of Bombay under the States Reorganisation was, in our  view, properly upheld. The second question on which argument was advanced does  not require much elaboration.  By s. 5A of the Land  Acquisition Act,  power  to hear objections has to be exercised  by  the Collector  as defined in s. 2(c) of the Act.  The  power  to hear  objections is under the statute, not the power of  the appropriate,   Government,  but  of  the   Collector.    The expression  ’Collector’ as defined in the Act is either  the Collector  of a district or any officer specially  appointed by  the appropriate Government to perform the function of  a Collector under the Act.  The

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(1)1955 1 S.C.R. 735. (2) I.L.R. (1958) Mysore 48. 316 statute itself confers authority to appoint a Collector  for the  purposes of the Act by the appropriate Government,  and the Commissioner acting in pursuance of the powers conferred upon  him  by Art. 258(1) appointed the  Additional  Special Land  Acquisition Officer, Ahmedabad, as Collector  for  the purposes of s. 5A.  In so appointing the Additional  Special Land  Acquisition  Officer the  Commissioner  exercised  the power  which  was  statutorily  vested  in  the  appropriate Government. It  may  at  once be observed that no  materials  have  been placed  before  the Court by the appellant  to  support  the contention which was at one stage faintly advanced that  the proceedings of the Collector were irregular or illegal.  The Collector held an inquiry as contemplated by s. 5A and  made his  report to the Commissioner exercising the functions  of the  appropriate Government and in pursuance of that  report the notification under s. 6 of the Land Acquisition Act  was issued.   Under s. 5A(2) every objection to the  acquisition of  the land notified or of any land in the locality has  to be made to the Collector in writing and the Collector has to give  the objector an opportunity of being heard  either  in person  or  by pleader and he has, after  hearing  all  such objections,  and after making such further inquiry, if  any, as he thinks necessary, to make a report of his  recommenda- tions  on the objections.  The report under s. 5A is  not  a condition  precedent  to  the  issue of  the  issue  of  the notification  under  s. 6. The  appropriate  Government  may under  the emergency clause in s. 17 take possession of  the land free from all encumbrances and direct under sub-s.  (4) of  s.  17  that in the case of any land to  which,  in  the opinion  of  the appropriate Government, the  provisions  of sub-s.  (1) or sub-s. (2) are applicable, the provisions  of s. 5A shall not apply.  Again the Collector is not  required to  arrive at any decision.  He has to submit the  case  for the decision of the appropriate Government together with the record  of  the  proceedings  held  by  him  and  a   report containing his recommendations on the 317 objections.   Prima  facie,  such  a  report  would  be   an administrative  report,  relying upon which  the  Government makes  its decision under s. 6 whether or not to notify  the land for acquisition.  The decision that any particular land is needed for a public purpose is an administrative decision and it is for the purpose of arriving at that decision  that the Act requires that certain inquiries be made.  It is true that the Collector is required to follow the procedure pres- cribed  and to give an opportunity to the objector of  being heard in person or by a pleader.  It is, however, open as s. 5A   expressly  provides  to  the  Collector  to   make   an independent   inquiry,  apart  from  the  enquiry   on   the objections  submitted  . It cannot in the  circumstances  be said  that  the inquiry is a judicial  or  a  quasi-judicial inquiry.  There was in the present case no delegation of any judicial power vested in the Central Government.  The  power to  hold an inquiry is statutorily vested in the  Collector, and  the  Collector has exercised that power.   The  Commis- sioner  exercising  his authority entrusted  to  him  merely appointed on behalf of the Central Government the Additional Land Acquisition Officer as the Collector and considered the report in pursuance of the functions entrusted to him  under the  notification issued by the President.  In so acting  he did  not act in any manner inconsistent with  the  authority

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conferred,  or  which could in law be conferred,  upon  him. The second objection must also fail. In our view therefore the appeal fails and is dismissed with costs. WANCHOO J.-We regret we are unable to agree. This  is an appeal on a certificate granted by  the  Gujarat High  Court.   The appellant is the owner in  possession  of Final Plot No. 686 of Ellis Bridge Town Planning Scheme  No. 3  in Ahmedabad measuring 7,018 sq. yards.  On September  1, 1960,  a  notification  was issued under s. 4  of  the  Land Acquisition 318 Act,  No. 1 of 1894 (hereinafter referred to as the Act)  by the Commissioner of Baroda acting under powers entrusted  to him  by an order of the President under Art. 258(1)  of  the Constitution.    By  this  notification   the   Commissioner notified  that 3,200 sq. yards out of this plot  was  needed for  the  construction  of a  telephone  exchange  building. Further by this notification the Commissioner appointed  the Additional  Special Land Acquisition Officer,  Ahmedabad  to perform  the functions of the Collector under s. 5A  of  the Act  in respect of this land.  Thereafter  necessary  action was taken under s. 5A of the Act and the Commissioner made a notification  under  s. 6 of the Act on  January  12,  1961, after  considering  the report of  the  Collector  appointed under  the  earlier  notification under s.  4  and  by  this notification the Commissioner specified that 3,387 sq. yards would  be  needed  for the  construction  of  the  telephone exchange  building  in  Ellis Bridge  out  of  plot  No.686. Thereafter  on  February 22, 1961, the appellant  filed  the writ petition out of which the present appeal has arisen and he  challenged  the notification under s. 6 of  the  Act  on three main grounds, namely-- (1)The notification dated July 24, 1959, under Art. 258(1) of  the Constitution could not invest the commissioner  with the powers therein specified in view of the fact that it was made at a time when the new State of Gujarat which came into existence on May 1, 1960 did not exist, and the officers  of the  State  of Gujarat could only be  entrusted  with  these functions  under  Art.  258(1)  with  the  consent  of   the Government of Gujarat.  As the notification of July 24,  did not  have the consent of the State of Gujarat, it could  not be available for the purpose of conferring any power on  the officers of the State of Gujarat after May 1, 1960. (2)Even  if  the  notification  of  July  24,  1959,   was effective  after the coming into existence of the  State  of Gujarat,  the Commissioner could not appoint the  Additional Special Land Acquisition Officer as 319 a  Collector for the purpose of s. 5-A of the Act,  as  that would amount to delegation of his delegated authority. (3)..The  proceedings  under s. 5-A of the  Act  are  quasi- judicial  proceedings  and that is another  reason  why  the Commissioner  could not delegate his functions under s.  5-A to any other officer. The petition was opposed on behalf of the Union of India and its contention in. reply to the three main grounds was that- (1)the  notification under Art. 258 dated July  24,  1959, had the force of law and therefore in view of ss. 82 and  87 of  the  Bombay Reorganisation Act, 1960, No.  XI  of  1960, (hereinafter  referred  to as the Reorganisation  Act),  the notification continued to have full force and effect and the Commissioner could act under the functions entrusted to him; (2)the   Commissioner  had  authority  in  view   of   the notification under Art. 258(1) to appoint a Collector within

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the meaning of s. 3(c) of the Act and there was no  question of   any  sub-delegation  of  delegated  authority  by   the Commissioner,; and (3)the  functions under s. 5-A of the Act are  not  quasi- judicial  but  administrative.   Even  if  they  are  quasi- judicial,  they are vested in the Collector or  any  officer specially appointed by the appropriate government to perform the  functions  of a Collector under the Act,  and  this  is exactly what was done by the Commissioner. The  High  Court  dismissed the petition  holding  that  the notification  of  July 24, 1959, under Art.  258(1)  of  the Constitution  had the force of law and was  therefore  saved under  s.  87  of the Reorganisation  Act.   In  consequence reading  s.  87 with s. 82 of the  Reorganisation  Act,  the Commissioner would have the power to carry on the  functions entrusted  to him by the notification of July 24, 1959.   It further  held  that the Commissioner had  the  authority  by virtue of the notification of July 24, 1959, to appoint  any officer specially to carry on the duties assigned 320 to the Collector under the Act and therefore the officer  so appointed  could  carry  on  the  duties  assigned  to   the Collector under the Act.  Finally, it held that  proceedings under  s. 5-A of the Act were administrative in  nature  and there was therefore no question of delegation of any  quasi- judicial functions either by the notification dated July 24, 1959,  or  by the order of the  Commissioner  appointing  an officer  specialty to carry on the duties of  the  Collector under  the  Act.   The appellant  thereupon  applied  for  a certificate  which was granted; and that is how  the  matter has come up before us. The main question that falls for consideration is the nature of  the notification dated July 24, 1959, under Art.  258(1) of  the  Constitution.  The contention of the  appellant  is that  Art.  258(1)  deals  with  entrustment  of   executive functions  only by the President to the State Government  or to  its officers with its consent and has no application  to entrustment of any other functions of the President, whether legislative  or quasi-judicial.  Therefore any  notification issued under Art. 258(1) can only amount to an executive act of the President and cannot have the force of law.  Further, it  is  urged that even if the fact that the scope  of  Art. 258(1)   is  only  confined  to  entrustment  at   executive functions  may  not be decisive of the  question  whether  a particular  order passed under it is an executive  act,  the nature of the order passed in the present case is such  that it must be held to be executive in character and cannot be a law  and have the force of law.  Consequently s. 87  of  the Reorganisation  Act will not apply o this order and it  will not be saved as an order or notification having the force of law  by  that section.  Lastly, it is urged that  s.  82  by itself  would not be sufficient to save the power  conferred on  the Commissioner by the notification of July  24,  1959, for under that section all persons before the appointed  day holding  or discharging the duties of any post or office  in connection  with the affairs of the State of Bombay  in  any area which on that day falls within the State of Maharashtra 321 or Gujarat shall continue to hold the same post or office in that  State and shall be deemed to have been duly  appointed to  the  post  or  office by the  Government  of,  or  other appropriate  authority in, that State.  This, it  is  urged, only   means   that  the  person  holding  the   office   of Commissioner  immediately  before  the  appointed  day  will continue  to be a Commissioner for the purpose of the  State

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of Gujarat and will be deemed to have been appointed to that office by the State of Gujarat from the appointed day.   But s. 82 will not have the effect of the Commissioner  continu- ing   to  have  the  functions  entrusted  to  him  by   the notification of July 24, 1959, for the pre-condition to  his retaining  such functions, namely, the consent of the  State of Gujarat, would be wanting. It  is not disputed on behalf of the Union of India that  if the  notification dated July 24, 1959, has not the force  of law  and s. 87 of the Reorganisation Act does not  apply  to it  will  not survive after May 1, 1960, when the  State  of Gujarat  came  into existence.  It is however  contended  on behalf  of  the respondents that  Art.  258(1)  contemplates entrustment  not  only  of executive functions  but  of  all functions,  whether  legislative  or  executive  or   quasi- judicial, and that the order of July 24, 1959, has the force of law and would be saved under s. 87 of the  Reorganisation Act. We  must  therefore proceed to  consider  whether  functions which  can  be entrusted to the State Government or  to  its officers with the consent of the State Government under Art. 258(1)  are  only  executive  functions  or  all  kinds   of functions, whether executive, legislative or quasi-judicial. Article 258(1) reads as follows :- "(1)  Notwithstanding  anything in  this  Constitution,  the President  may,  with  the consent of the  Government  of  a State,  entrust either conditionally or  unconditionally  to that Government or to its officers functions in relation  to any  matter  to  which  the executive  power  of  the  Union extends." 1 SCI/64-21 322 Stress  is  laid on behalf of the respondents  on  the  word "functions"  and it is urged that word is not  qualified  by the  word  "executive" and therefore it must  be  given  the widest  interpretation  and  would  include  all  kinds   of functions,  whether  executive, legislative or  even  quasi- judicial,  it’  any.   Further it is urged  that  the  words following  the  word  "functions" in Art.  258(1)  are  only descriptive  in  nature and do not mean that  the  functions which  can  be  entrusted  are  only  executive   functions. Reliance  in this connection is placed on a decision of  the Allahabad  High Court in Amir Khan v. State(", where it  was held  with  reference to s. 124 of the Government  of  India Act, 1935, which is in the same terms as Art. 258(1) that it was  open to the Governor-General to entrust his  functions, even  though they may be legislative functions,  under  that section to the Provincial Government. It is necessary therefore to examine the scheme and  setting of Part XI of the Constitution in which Art. 258(1)  appears to decide whether the functions which can be entrusted under Art.  258(1)  can  only  be functions  in  relation  to  the executive  power  of  the  Union  or  whether  they  can  be functions  relating  to the  legislative  or  quasi-judicial powers also.  Part XI deals with the "relations between  the Union and the States" and is divided into two chapters.  The first  chapter  containing  Arts.  245  to  255  deals  with legislative  functions  and  is mainly  concerned  with  the distribution of legislative powers between the Union and the States.   Article 245 gives the general law-making power  to Parliament and the legislatures of the States.  Article  246 distributes  powers of legislation in accordance with  Lists 1, 11 and III of the Seventh Schedule between Parliament and the  legislatures  of the States  an(-,’,  vests  additional power in Parliament to make laws with respect to matters  in

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all the Lists with respect to territories not included in  a State.   Article  247 gives power to Parliament  by  law  to establish additional courts for certain (1)  I.L.R. [1962] 2 All. 310. 323 purposes.  Article 248 gives residuary powers of legislation to Parliament.  Article 249 provides for power of Parliament to  legislate with respect to matters in the State  List  in the national interest in certain contingencies.  Article 250 gives  power to Parliament to legislate with respect to  any matter  in the State List if a proclamation of emergency  is in  force.   Article  251 provides  for  resolution  of  any inconsistency  between  the laws made  by  Parliament  under Arts.  249 and 250 and the laws made by the legislatures  of the States under Art. 246.  Article 252 provides for  powers of  Parliament  to  legislate  for two  or  more  States  by consent.  Article 253 gives power to Parliament to legislate to  give  effect to international agreements.   Article  254 provides  for resolution of inconsistency between laws  made by  Parliament and laws made by the legislatures  of  States with  respect  to the Concurrent List.   Article  255  makes certain  procedural  provisions with respect to  laws  which require  some recommendation and previous sanction. it  will thus be seen that all these Articles in Chapter I deal  with legislation. Chapter II is headed "administrative relations" and contains Articles  from 256 to 263.  It is divided into three  parts, namely,   general,  disputes  relating  to  water  and   co- ordination  between  States, and is  mainly  concerned  with seeing  that  the executive power of the Union  and  of  the States is smoothly exercised where it is to be exercised  in the  same  territory.  Article  256  lays  down  that   "the executive  power of every State shall be so exercised as  to ensure  compliance with the laws made by Parliament and  any existing  laws which apply in that State, and the  executive power  of  the  Union shall extend to  the  giving  of  such directions  to  a State as may appear to the  Government  of India  to  be  necessary for  that  purpose".   Article  257 provides  for  control of the Union over States  in  certain cases  and  lays down that the executive power  of  a  State shall  be  so exerciser as not to impede  or  prejudice  the exercise  of the executive power of the Union.   It  further lays down that the executive 324 power of the Union shall extend to the giving of  directions to  a  State for certain, purposes and also for  payment  of certain  sums in certain circumstances by the Government  at India  to the Government of a State.  Then comes  Art.  258, the  first  clause of which we have already  set  out.   The second  clause provides that a law made by Parliament  which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the  State has  no power to make laws, confer powers and impose  duties or authorise the conferring at’ powers and the imposition of duties, upon the State or officers and authorities  thereof. This  clause may be contrasted with cl. (1).  Under cl.  (1) no  entrustment  of  function can  take  place  without  the consent of the State Government but under cl. (2) Parliament may  by  law  confer powers and  impose  duties  in  certain circumstances and the consent of the State Government is not necessary  for  this purpose.  This clearly brings  out  the distinction  between  entrustment  of  functions  which   is exercise  of  executive  power under Art. 258  (1)  and  the making  of  a  law conferring powers  and  duties  which  in express  terms is exercise of legislative power  under  Art.

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258(2).   Clause (3) provides for payment of  certain  sums. This clause in OUT opinion refers only to cl. (2), for there is no question of settlement of payment after the consent of the  State Government has been obtained.  If there is to  be any payment for carrying out functions entrusted under  Art. 258(1) it will be settled when consent is obtained.  Article 258-A  is  the counterpart of Art. 258(1)  and  permits  the Governor  of a State with the consent of the  Government  of India, to entrust either conditionally or unconditionally to that Government or to its officers functions in relation  to any  matter  to  which  the executive  power  of  the  State extends.  Article 260 gives power to the Government of India by agreement with the Government of any territory not  being the   territory  of  India  to  undertake   any   executive, legislative  or judicial functions vested in the  Government of  such  territory.   This  Article  certainly  refers   to legislative, judicial and executive functions 325 but  they  are referred to expressly and  the  Constitution- makers  did not content themselves with using only the  word "functions".  Article 261 provides for full faith and credit to  public acts, records and judicial  proceedings.   Clause (2)  thereof  lays down bow such full faith  and  credit  as provided in cl. (1) shall be given and says that it shall be done  as  provided by law made by  Parliament.   Clause  (3) provides that final judgments or orders delivered or  passed by civil courts in any part of the territory of India  shall be  capable  of  execution anywhere  within  that  territory according to law.  It will be seen that Art. 261 also  where it   departs   from   dealing   with   executive   functions specifically mentions whether the functions are  legislative or  judicial.  Article 262 deals with disputes  relating  to water and gives power to Parliament by law to provide for ad judication  of such disputes.  Here again this Article  does not deal with executive functions and this is clear from the words  used  in  the Article.  Article 263  deals  with  co- ordination between States and provides for the setting up of inter-State  Councils  and  is  obviously  of  an  executive nature. It  will be seen therefore that where Chapter II of Part  XI dealing  with  administrative relations deals  with  matters other than executive functions, it has specifically referred to these other matters which have to be dealt with by law or which  are  judgments  of courts;  otherwise  the  whole  of Chapter II of Part XI is concerned with the executive  power of the Union or the State and therefore deals with executive functions. It is true that the word "functions" in Art. 258 (1) is  not qualified by the word "executive" and therefore it may prima facie appear that all kinds of functions whether legislative or  quasi-judicial  or executive, can be  entrusted  by  the President  to the State Government or its officers with  its consent.  The word " functions" in Art. 258 (1) is  governed by  the words following "in relation to any matter to  which the execu- 326 tive  power  of the Union extends".  It is said  that  these words are merely descriptive and are in accordance with Art. 73  which defines the executive power of the  Union.   Under Art. 73 (1) (a) the executive power of the Union extends  to matters  with respect to which Parliament has power to  make laws  subject to the proviso thereto.  So the argument  runs that the President can ordinarily entrust any kind of  func- tion  in relation to matters contained in List I and  it  is immaterial whether such functions are executive, legislative

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or  even  quasi-judicial,  if  any.  It  is  true  that  the President  can  under Art. 258(1) entrust his  functions  in relation  to any matter to which the executive power of  the Union  extends; but we have to ask the question  whether  it was  the  intention  of the  Constitution-makers  that  such "functions"  could  be  of any  kind,  whether  legislative, executive  or  even quasi-judicial, if any, in view  of  the scheme  and setting in which Art. 258(1) appears.  It  seems to us that when Art. 258(1) is giving power to the President to entrust his functions to the Government of a State or  do its  officers  in  relation  to any  matters  to  which  the executive  power of the Union extends, the intention  is  to entrust  only  executive functions and no other.   The  word "functions"  even  though it is not qualified  by  the  word "executive"  in  Art. 258(1) must in our  opinion  take  its colour from what follows and if that is so the functions  to be  entrusted  must be of the same nature as  the  executive power of the Union.  It is true that the words following the word  "functions"  describe  the  field  within  which   the functions can be entrusted and this field is to be found  in accordance with List I ordinarily; but it is in our  opinion legitimate  to  bold  that  the  words  following  the  word "functions"  when  they  delimit  the  field  in  which  the functions  can be entrusted also indicate the nature of  the functions to be entrusted and this to our mind is clear from the  use  of  the  words "executive  power"  in  the  clause following  the  word "functions" and it  is  only  executive functions therefore which can be entrusted by the  President under  Art.  258(1)  to the Government of  a  State  or  its officers. 327 Further the language used in Art. 258(1) re inform the above conclusion.   We may in this connection emphasise the  words "entrust functions’ and "with the consent of".   Entrustment implies  agency  and when the President  is  entrusting  his functions  to  the State Government or its officers,  he  is creating  an agency to carry out his functions and  creation of  such agency is more in consonance with carrying out  the executive  power of the Union which vests in the  President. In   this  connection  the  language  of  cl.  (2)  may   be contrasted.   Clause (2) speaks of conferment of powers  and imposition  of  duties  by  law  while  cl.  (1)  speaks  of entrustment of functions which words are more appropriate to the  creation of an agency to carry out the executive  power of the Union.  Again the "entrustment of functions" can take place  only with the consent of the State  Government.   Now the  requirement  of  consent is another  pointer  that  the functions  to  be  entrusted are  executive  functions  only resulting  in  the  creation of an agency  other  than  that envisaged in Art. 53.  Such entrustment with the consent  of the State Government is nothing more than the appointment of another  to  act  for  the President  in  carrying  out  the executive  power  of the Union.  The concept of  consent  is also  germane  to  entrustment  of  executive  functions  to another  agency  which is otherwise not bound to  carry  out such functions.  Generally speaking, one does not make a law with the consent of another (and this is so in spite of  the special  provision contained in Art. 250 though it is  usual to  ask  for  consent  when one wants  another  to  do  some executive  act for one.  Taking therefore the language  used in Art. 258(1) it is to our mind capable of only one meaning viz.  that  it enables the President to ask the  State  Gov- ernment  or  its officers, with its consent,  to  carry  out functions which pertain to the executive power of the  Union vesting in him and to no other kind of power.

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If  this entrustment were to be extended to functions  other than executive some startling results will 328 follow.  There are many provisions in the Constitution which give  legislative  power,  delegated or  otherwise,  to  the President  and  if  the  word  "functions"  in  Art.  258(1) includes within it legislative functions and the words  that follow the word "functions" only prescribe the field  within which  these  functions  may be  entrusted  i.e.  ordinarily within the limit of List 1, and do not further delimit  that the  functions  to  be  entrusted  within  this  field   are executive  functions only, the result will be that even  the legislative functions of the President, where they relate to this field, can be entrusted by him to the State  Government or  its  officers.  As an example take Art. 123.   It  gives power  to  President  to promulgate  Ordinances  in  certain circumstances,  which have the same force and effect  as  an Act of Parliament.  These Ordinances can ordinarily be  made with  respect  to matters in List I and also  in  List  III. Therefore if the functions which can be entrusted under Art. 258(1) can also be legislative, Art. 258 would be conferring power on the President to entrust his function of Ordinance- making  to  the Government of a State or its  officers  with respect  to matters in List I ordinarily.  Such a  startling result which would follow on the interpretation urged by the learned  Attorney-General  could  not  possibly  have   been intended   by  the  Constitutionmakers.   It  seems  to   us therefore  that when Art. 258 (1) speaks of  entrustment  of functions in relation to any matters to which the  executive power  of the Union extends it not only delimits  the  field within which the entrustment can be made (and that field  is ordinarily  to be found in List I of the  Seventh  Schedule) but  it  also  delimits the nature of the  functions  to  be entrusted,  namely,  those  functions  must  be   executive. Otherwise,  if  the  words following  the  word  "functions" merely  delimit the field and the functions of any kind,  be they legislative, executive or even quasi-judicial, if  any, relating to List I can be ordinarily entrusted to the  State Government  or its officers, the result would be  that  even the  Ordinance-making  power under Art. 123  insofar  as  it relates to List I can be entrusted as a function relating to that List 329 to the State Government or its officers.  But obviously this could  not  possibly be the intention of  the  Constitution- makers.   Similar other legislative powers of the  President are  to be found in Art. 98(3) and Art. 101 (2) where he  is authorised  to make rules, in Art. 118(3) which  also  gives him  power  to  make  rules, in  Art.  309  where  also  the President  can make rules, in proviso to Art.  320(3)  where the  President  can  make regulations,  in  Art.  357  which provides   for   exercise  of  legislative  power   when   a proclamation has been made under Art. 356, in Arts. 372  and 372-A  which  provide  for adaptation.  A  review  of  these provisions  would make it clear that where it  was  intended that the legislative power of the President can be delegated (i.e.  entrusted to others), there is a  specific  provision therefore  in  the Article itself.  For  example  Art.  309, which  gives rule-making power in connection with  services, specifically  lays  down  in the proviso that  it  shall  be competent for the President or such person as he may  direct to make rules relating to recruitment and the conditions  of service of persons to be appointed to the Union services and posts.   Similarly  Art.  357  provides  that  where  by   a proclamation issued under Art. 356 it has been declared that

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the  powers  of  the  Legislature  of  the  State  shall  be exercisable  by  or under the authority  of  Parliament,  it shall  be competent to confer on the President the power  of the  Legislature of the State to make laws and to  authorise the  President to delegate subject to such conditions as  be may  think  fit to impose, the power so conferred  upon  any other  authority to be specified by him in that behalf.   It will  be  seen therefore that where it was intended  by  the Constitution  that  the legislative power of  the  President could  be delegated by him to some other person, there is  a specific  provision in that behalf in the Constitution.   It is  difficult therefore to accept that Art. 258(1)  provides for  the  entrustment of the legislative  functions  of  the president, for example, with respect to matters contained in List I by a kind of side-wind to the State Government or  to any of its officers.  We are therefore of opinion 330 that  even  though the word "functions" in Art. 258  is  not qualified  by the word "executive", the effect of the  words following  the word "functions" in Art. 258(1) is  two-fold, namely,  to delimit the field within which  the  entrustment can take place, namely the field covered ordinarily by  List I  and  also  to  delimit the  nature  of  functions  to  be entrusted,  namely, executive functions.  We may also  point out  that  there are provisions practically in  all  Central Acts conferring rule-making power on the Central Government. Under s. 3 (8)(b) of the General Clauses Act No. 10 of 1897, ’the  "Central Government" means the President.  So  if  the contention   of  the  learned  Attorney-General  is  to   be accepted, Art. 258(1) in effect authorises the President  to entrust the rule-making power under various statute,; to the State  Government or its officers.  Such a result would  not have  been  intended  by the  Constitutionmakers  when  Art. 258(1)  was put in the Constitution.  It is argued that  the President  is not bound to entrust legislative functions  to the  State  Government or its officers and  would  generally never do so.  The fact that the President will not do so  is no reason for interpreting Art. 258(1) in such a way as will run  against the clear intention of the  Constitution-makers deducible  from the scheme and setting in which the  Article appears  and so make it possible for such startling  results as  we have referred to above.  We are therefore of  opinion that Art. 258(1) when it speaks of entrustment of  functions is only confined to executive functions of the President and no other.  In this view the decision in Amirkhan’s case with respect  to  s. 124(1) of the Government of India  Act  1935 which  is pari materia with Art. 258(1) must be held  to  be incorrect. It  is  next urged on behalf of the appellant that  even  if Art.  258(1) is confined only to executive functions it  was not  open  to  the  President  to  entrust  this  particular function  under  Art.  258(1) to an  officer  of  the  State Government  in view of the proviso to Art. 73(1) which  lays down the extent of executive 331 power of the Union.  Article 73(1) lays down by sub-cl.  (a) that  the  executive power of the Union extends  to  matters with  respect  to which Parliament has power to  make  laws. This  would prima facie include both Lists I and  III.   But the  proviso lays down that the executive power referred  to in sub-cl. (a) shall not save as expressly provided in  this Constitution or in any law made by Parliament extend in  any State  to matters with respect to which the  Legislature  of the  State has also power to make laws.  The effect of  this proviso  is that the executive power of the Union  will  not

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normally extend to matters covered by List III, unless  they are brought in by one or other of the two exceptions in  the proviso.   These two exceptions are: (i) where there  is  an express  provision in the Constitution, and (ii)  where  any law  made by Parliament provides otherwise.  The  contention on behalf of the appellant is that there is no law providing otherwise   and  there  is  no  express  provision  in   the Constitution  by  which the power of  entrustment  could  be extended  to a case of acquisition of land by the  Union  as the  power  to  make  laws in  respect  of  acquisition  and requisitioning   is  covered  by  entry  42  of  List   III. Therefore, it is urged that this being a matter relating  to List  111, the executive power of the Union does not  extend to it and therefore no order with respect to it can be  made by  the  President under Art. 258(1).  We do  not  think  it necessary  to  express  any opinion on this  aspect  of  the matter in view of our decision on other points raised before us. This brings us to the main question involved in this appeal, namely, whether the notification dated July 24, 1959, is law to which s. 87 of the Reorganisation Act applies.  The first contention  of the appellant in this connection is  that  as Art.  258(1) deals with entrustment of executive  functions, an  order  passed thereunder can be an executive  order  and cannot be a law.  Prima facie this may be so; but it is  not in  our opinion conclusive of the matter, and we have  still to see the contents of the order passed under 332 Art.  258(1) to see whether it satisfies the  definition  of law as contained in s. 2(d) of the Reorganisation Act.   Section  2(d) says that law includes  any  enactment, ordinance,   regulation,  order,  bye-law,   rule,   scheme, notification or other instrument having, immediately  before the  appointed day, the force of law in the whole or in  any part  of  the  State of Bombay.  It will be  seen  that  the definition  is inclusive and has not actually  defined  what law means.  Further all the terms, which have been  included in  s. 2(d) may not necessarily be law and they will be  law only if they have the force of law.  It is not disputed, for example,  that  every order passed  and  every  notification issued by the Government will not necessarily be law and  it is  only such orders and notifications as have the force  of law  which  will be law within the meaning of  s.  2(d)  and therefore law for the purpose of s. 87 of the Act.  We  have therefore   to  find  out  the  exact  connotation  of   the expression  "having the force of law" in order to  determine whether  an order or notification is law within the  meaning of s. 2(d). What then is the concept of law which must in our opinion be borne   in  mind  before  deciding  whether  an   order   or notification  has the force of law?  "In the broadest  sense in  which  the  term ’law’ should be used,  it  signifies  a command  which  obliges a person or persons to a  course  of conduct.  Being a command, it must issue from a  determinate person  or group of persons, with the threat of  displeasure if  the rule be not obeyed." This concept is to be found  in Austin’s  Jurisprudence.  But it was open to  the  criticism that it would exclude customs or usages which have the force of  law, as customs or usages are not commands  which  issue from  a  determinate person or group  of  persons.   Salmond therefore  broadened the concept of law and defined it as  a "body  of principles recognised and applied by the State  in the  administration  of  justice".  Paton  in  his  book  on Jurisprudence, second edition, at p.   77 defines ’law’ as follows:-

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333 "Law  may  shortly be described in terms of  a  legal  order tacitly or formally accepted by a community, and it consists of  the  body  of  rules  which  that  community   considers essential to its welfare and which it is willing to  enforce by  the  creation  of  a  specific  mechanism  for  securing compliance." It will be seen therefore whether law comes as a command  of a sovereign body or as a custom or usage having the force of law,  the basic concept is that it should consist of a  body of  rules  which govern the conduct of persons  forming  the community  in which it is enforced and which that  community enforces through necessary machinery.  It follows  therefore that  if  a notification or order made by Government  is  to have the force of law, it must consist of a rule or body  of rules  regulating  the  course of conduct  of  a  person  or persons  living  in the community and further it  should  be enforceable  by judicial or other processes created for  the purpose. Let  us  see  how this concept of law is  satisfied  in  the present case taking into account the definition given in  s. 2(d)  of  the  Reorganisation  Act.   The  essence  of  that definition  is that an order or notification in order to  be law  must have the force of law.  The expression  "force  of law"  must  be distinguished from "the  authority  of  law". Many  orders issued by Government have the authority of  law behind  them  but all of them cannot invariably be  said  to have  the force of law, for in order that they may have  the force  of  law they must satisfy the basic concept  of  law, i.e.,  they must contain a rule or body of rules  regulating the course of conduct of a person or persons living in  that community  enforceable  through courts  Or  other  machinery provided  therefor.   Thus if an order is issued  under  the authority  of  law  but it does not prescribe  a  course  of conduct regulating the action of a person or persons  living in the community, it cannot be law, for such an order  would not  necessarily  require  enforcement by  courts  or  other machinery,   for  no  question  of  its   breach   requiring enforcement arises as it prescribes no course of conduct for the 334 community to obey.  Such an order may have the authority  of law behind it and in a State governed by the rule of law  it will  usually be so.  But "the authority of law" as we  have said  already must be distinguished from "the force of  law" and  every  order that has the authority of  law  behind  it would not be one having the force of law, unless it complies with  the basic concept of law as mentioned above.   It  has however  been urged that an order having "the  authority  of law"  would  be enforced by courts and therefore it  may  be said  to have the force of law.  There is in our  opinion  a misconception  in  this  argument.   An  order  having  "the authority of law" behind it may be recognised by courts  but unless  it  prescribes a rule of conduct which a  person  or persons  living  in  the community must  obey  there  is  no question  of its being enforced by a court of law  or  other authority.    ’The  recognition  of  an  order  having   the authority  of law by courts or other authorities is  in  our opinion  different from its enforcement by courts  or  other authorities,  and it is only when the order can be  enforced by  courts or other authorities that it can be said to  have the force of law.  The courts or other authorities may  even recognize   orders  of  Government  which  have  no   direct authority  of law behind them but which are not  opposed  to any  law.  Such orders cannot be said to have the  force  of

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law  and be enforceable by courts or other  authorities  and thus claim to have the force of law, for they lack the basic concept of law as already referred to. Let us now look to the definition in s. 2(d) in the light of this  basic  concept of law and see how  the  various  terms included  within  "law" as having the force of  law  satisfy this  basic concept.  The first term included in s. 2(d)  is enactment.   An enactment has necessarily the force  of  law because  it is an expression of the legislative will and  is expressly  enacted  as  law by  the  legislature  and  would necessarily contain a body of rules which have to be  obeyed by  persons living in the particular community.  The  second term used in s. 2(d) is ordinance having 335 the force of law.  If an ordinance is passed, say under Art. 123  or Art. 213 of the Constitution, it stands  exactly  on the same footing as an enactment and would necessarily  have the  force of law.  If it is another kind of  ordinance,  it can have the force of law if it lays down a binding rule  of conduct and the body passing it has the authority of law  to lay down such a binding rule of conduct.  Such an  ordinance would usually be subordinate legislation.  The third term is regulation.   A  regulation may be a direct command  of  the legislature in which case it will stand on the same  footing as  an enactment.  Examples of this kind of regulations  are to  be found in the old regulations passed by the  Governor- General  before  1857 under his law-making  power,  some  of which  are  still  in  force  in  this  country.   Secondly, regulations may be a kind of subordinate legislation and  in such  a  case they are bound to consist of a body  of  rules which  regulate  the  conduct  of  persons  living  in   the community and are enforceable by courts or other authorities provided the body passing the regulations has the  authority to  do so.  The fourth term is order.  Orders may be of  two kinds;  they may be merely executive orders laying  down  no course  of  conduct for anybody, though they  may  have  the authority of law or may not be opposed to any law and courts or  other authorities may recognise them.  Another  kind  of orders will be in the form of subordinate legislation laying down  rules  of conduct which can be enforced by  courts  or other  authorities.  An example of such orders may be  found in  various  orders passed under the Defence of  India  Act, 1939, or the Essential Commodities Act, 1955.  These  orders lay  down  a  body of rules which regulate  the  conduct  of person  or persons living in the community and are  enforce- able by courts or other authorities.  The next term is  bye- law.   Bye-laws  are  a well-known  species  of  subordinate legislation.   They  lay  down  general  rules  of   conduct governing  persons  and are enforceable by courts  or  other authorities if passed by a body having the authority of  law to do so.  The next 336 term  is  Rule.   Rules are again a  well-known  species  of subordinate legislation laying down general rules of conduct and if they are passed by a body having the authority to  do so they are enforceable by courts or other authorities.  The next term is scheme.  Schemes may be of two kinds.  They may embody  subordinate legislation containing a body  of  rules binding on persons with whom they are concerned and in  such a  case if passed by a body having the  necessary  authority they will be enforceable by courts or other authorities  and would have the force of law.  But there may be another  kind of schemes which are merely executive in nature and they  do not  contain  any rules of conduct for any body  to  follow. This  will  not  have  the force of  law  and  will  not  be

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enforceable by courts or other authorities, as they lay down no  rule  of conduct which courts or other  authorities  may enforce.   The  next term  is  notification.   Notifications again  may  be  of two kinds.  Most  government  orders  are notified so that the public may know them.  All of them have not  the  force of law.  Only such  notifications  have  the force of law which are a species of subordinate  legislation passed by a body having the authority to promulgate them and which lay down rules of conduct for persons in the community to  obey.  But there may be notifications which lay down  no rule  of  conduct.   For  example,  all  appointments,   and transfers of officers are notified through notifications and these  are  merely executive orders for the purpose  of  the information  of  public  and do not lay  down  any  rule  of conduct  to  be followed by persons in the  community.   The last  term is "other instruments" and these again may be  of two kinds, like schemes.  If they have the characteristic of subordinate legislation and contain a rule or body of  rules to be followed by persons living in the community they  will have  the  force of law and will be enforced  by  courts  or other authorities.  But they can also be merely executive in nature:  for example, sale-deeds, mortgage deeds  etc.,  are all  instruments but have not the force of  law.   Similarly treaties between sovereign powers 337 are also instruments but they have by themselves no force of law.   That is why we find a specific provision in Art.  253 for legislation to give effect to international agreements. or order may have the force of law it has to contain a  rule or  body  of  rules regulating the conduct of  a  person  or persons  living in the community; it has to be passed  by  a body  which has the necessary authority for the purpose  and it  is then that it will be enforceable by courts  or  other authorities  and will have the force of law.  In  short,  in order that a notification or order may have the force of law it  is not enough that courts may recognise it if  necessity arises;  it  is further necessary that the same  should  lay down  a rule or course of conduct which a person or  persons living  in the community may be obliged to follow and  which therefore becomes enforceable by courts or other authorities and acquires the force of law. In this connection an argument was advanced on behalf of the respondent  that  many  statutes empower  Government  or  an authority  empowered by it to make rules and that  when  the Government  names the authority which will make  the  rules, its order has the force of law.  We do not think that is the correct  way of looking at the matter.  When the  Government names the authority in such a case, it is merely  performing an executive function, though when the authority proceeds to frame rules it is making subordinate legislation which  will have the force of law for such rules will lay down a  course of  conduct to be followed by a person or persons living  in the  community  the breach of which will be  enforceable  by courts  or other authorities.  In all such cases  there  are three  stages;  (1) conferment of power by the  law  on  the government  or its nominee to make rules, (2) nomination  of the nominee by the government, and (3) exercise of the rule- making  power by the nominee.  The first and the  third  are clearly  legislative  acts  but the second is  in  our  view clearly  1/SCI/64--22 338 executive, for it is merely the designation of the person or authority who will make the law. Let  us now examine the notification in the present case  on

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the  basis of these principles.  The notification says  that in  exercise of the powers conferred by clause (1)  of  Art. 258 of the Constitution, the President hereby entrusts, with the consent of the State Government, to the Commissioners of Divisions  in  the  State of Bombay, the  functions  of  the Central  Government under the Land Acquisition Act, 1894  (1 of 1894) in relation to acquisition of land for the  purpose of the Union within the limits of the respective territorial jurisdiction  of the said Commissioners subject to the  same control by the Government of Bombay as is from time to  time exercisable by that Government in relation to acquisition of land   for  the  purpose  of  the  State.   In  effect   the notification  appoints  the Commissioners of’  Divisions  to exercise  the functions of the Central Government under  the Act  for  acquisition of land for Union purposes.   It  lays down no rules of conduct for persons living in the community to  follow,  it merely entrusts the powers  of  the  Central Government  for  certain purposes to  the  Commissioners  of Divisions.   It  is  true  that  the  notification  has  the authority of law behind it, for it is made under cl. (1)  of Art.  258  of the Constitution and as such if  an  order  is passed by the Commissioner by virtue of the powers conferred on him by the notification that order will be recognised  by courts.   But  there is no question of enforcement  of  this notification by courts, for no citizen can go and ask courts to enforce this notification.  The force of law arises  only when a notification lays down a rule of conduct for citizens to follow and thus makes the notification enforceable either at  the  instance of the citizens or of government  in  case there  is any breach of the rule laid down.  The  mere  fact that courts will take notice and recognise it and it has the authority  of  law  behind it would not in  our  opinion  be sufficient  to convert this notification into a  law  within the  meaning  of "law" which we have  already  referred  to. There 339 is nothing enforceable in this notification which is nothing more  than an appointment of a particular, person  to  carry out certain duties which would otherwise be carried on under the  Act  by the Central Government.   Such  a  notification cannot  in our opinion have the force of law even though  it has the authority of law behind it.  It is that authority of law  behind it which makes it recognisable by courts.   Even so it cannot be said that the notification lays down a  rule or  body  of  rules regulating the conduct of  a  person  or persons  living  in  the  community, as  such  there  is  no question  of  its being enforceable as a law  by  courts  or other authorities and therefore it has not the force of law. The  notification  in  our opinion is  merely  an  executive order.  with the authority of law behind it bat has not  the force of law, within the meaning of that expression under s. 2(d) of the Reorganisation Act. It  is however urged on behalf of the respondents  that  the notification  has the effect of amending the  definition  of "appropriate government" contained in s.     2  (ee) of  the Act which is as follows:- "the  expression ’appropriate Government’ means in  relation to  acquisition  of land for the purpose of the  Union,  the Central Government, and, in relation to acquisition of  land for any other purposes, the State Government." It is submitted that the effect of this notification is  the addition  of the words "where an order under Art. 258(1)  of the  Constitution has been passed, the officer to  whom  the functions  of  the  Central Government  under  the  Act  are entrusted." We gee no force in this argument.  It is  true,’

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as  we  have already said, that courts will  recognise  this notification  and an order passed by the Commissioner  of  a Division in pursuance of it will have the same effect as the order  of the Central Government; but we cannot  accept  the argument  that an order under Art. 258(1) by  the  President entrusting  certain  functions to an officer  of  the  State Government  can even amount to the amendment of the  law  in connection with which 340 the  order has been made.  No amendment to an enactment  can be  made except through the legislative process provided  in the  Constitution and Art. 258(1) does not provide  for  any legislative  process for amendment of an enactment.   It  is true  that  the effect of the notification in this  case  is that the Commissioner of a Division can do what the  Central Government can do under the Act but that does not mean  that the definition of the "appropriate Government" in the Act is amended  because  of the order.  We  therefore  reject  this argument. It now remains to refer to certain cases which were cited in this  behalf.   The  main case on which  reliance  has  been placed on behalf of the respondents is The Edward Mills  Co. Limited  v. the State of Ajmer(1).  In that case this  Court was  dealing  with  an  order made under  s.  94(3)  of  the Government  of India Act, 1935, and the question that  arose was  whether  such an order was a law in  force  capable  of adaptation.   This Court held that an order passed under  S. 94 (3) of the Government of India Act (which corresponded to Art.   239  of  the  Constitution)  which  dealt  with   the governance  of Chief Commissioner’s Provinces, was a law  in force within the meaning of Art. 372 of the Constitution and could  therefore  be adapted.  That case in our  opinion  is clearly  distinguishable and must be confined to  the  facts therein.   The order in question there was passed  under  s. 94(3) of the Government of India Act which, as we have  said already,  corresponded to Art. 239 of the Constitution.   In the  present case we are concerned with an order under  Art. 258(1) of the Constitution.  The provision corresponding  to Art.  258(1)  is s. 124(1) in the Government of  India  Act. That  case, therefore is not a direct authority for  a  case like the present which deals with Art. 258(1)  corresponding to s. 124(1) of the Government of India Act.  Besides s. 94, corresponding  to  Art. 239, dealt with  the  governance  of Chief Commissioners’ Provinces, and governance would include all kinds of functions, whether executive, (1)  [1955] 1 S C.R. 735. 341 legislative  or  judicial.   In  the  present  case  we  are concerned  with Art. 258(1), which as we have  already  held deals  with  the executive functions of the Union  only  and there is therefore no analogy between an order passed  under Art. 258(1) of the Constitution and an order passed under s. 94   (3)  of  the  Government  of  India  Act.    On   these considerations that case is of no help to the respondents. The next case to which a reference may be made is  Madhubhai Amathalal  Gandhi  v. the Union of India(1).  In  that  case this  Court  was  dealing  with  a  notification  under  the Securities  Contracts  (Regulation)  Act, No.  42  of  1956. There  was however no dispute in that case on  the  question whether the notification was law or not and it was  accepted without question that the notification in dispute there  was a  law.  In these circumstances that case is of no help  for the  proposition that every notification under a  law  would necessarily have the force of law. The   next   case  is  The  Public   Prosecutor   v.   Illur

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Thippayya(2).  That was a case with respect to orders issued under the Essential Supplies (Temporary Powers) Act, No.  24 of 1946, and the orders were held to have the force of  law. Those  orders  seem  to  have laid  down  a  body  of  rules governing  the  conduct of persons with respect  to  matters covered   by  them  and  would  therefore   be   subordinate legislation.    That  case  is  thus  of  no  help  to   the respondents. The  next  case is The State of Bombay v.  F.N.  Balsara(3). That was clearly a case of subordinate legislation  inasmuch as the order there passed was in pursuance of s. 139 of  the Bombay Prohibition Act, No. 25 of 1949, which gave power  to the  Government  by general or special order to  exempt  any intoxicant or class of intoxicants from the operation of any of’ the provisions of that Act.  Such an order would clearly have the force of law being subordinate legislation and that was  what  was held in that case. (1) [1961] 1  S.C.R.  191. (2) I.L.R. [1949] Mad. 371. (3)  [1951] S.C.R. 682. 342 Two  other cases to which references may be made are  :  (1) King-Emperor v. AbdulHamid(1) and Ramendrachandra Ray v. Emperor.In  the  first case the Superintendent  of  Police passedan order under s. 30 of the Police Act prohibiting processions  and the question was whether it was  law.   The Patna High Court held it was law and we think rightly.   The order  was  passed  by the Superintendent  of  Police  under authority vested in him by the Police Act and it  prescribed a course of conduct to be followed by persons living  within his   police   jurisdiction,  disobedience  of   which   was punishable.   It could therefore be enforced by  courts  and would  have the force of law.  The other case dealt  with  a similar prohibitory order under the Calcutta Police Act  and would  have force of law for the same reasons.  These  cases also do not help the respondents. Reliance  was  also  placed  on  two  other  cases,  namely, Chanabassapa Shivappa Tori v. Gurupadappa Nurgeppa  Hanji(3) and Haji K. K. Moidu v. Food Inspectors Kozhikode. (4) These two  cases were certainly concerned with  two  notifications which were held to have the force of law.  It is unnecessary to  examine these cases in detail as that would require  the consideration  of  the various enactments  under  which  the notifications  were made.  All that we need say is that  the view  taken by the High Courts as to the  two  notifications being law in those two cases is open to grave doubt. We  have therefore come to the conclusion that  Art.  258(1) contemplates  only  entrustment of executive  functions;  as such  the presumption is that any notification issued  under that provision entrusting such functions to an officer in  a State  is prima facie an executive act and cannot  have  the force of law.  Further on examination of the notification in the  present case we are satisfied that the notification  in question is merely an executive order, in effect  appointing certain officers to perform the functions of the (1)  [1923]  I.L.R.  II Patna 134. (2) [1931] I.L.R. LVIII Cal. 1303. (3) [1958] I.L.R. Mys. 48.   (4) I.L.R. [1961] Kerala 639. 343 Central  Government  in  relation to  the  Act.   It  cannot therefore have the force of law and is thus not a law  under s.  2(d) of the Reorganisation Act.  It therefore  does  not continue  under  s.  87  of  the  Reorganisation  Act.   The Commissioner of Baroda therefore would have no power to  act under the notification of July 24, 1959, after May 1,  1960, for the consent of the State of Gujarat was lacking to  that

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notification.  The notifications therefore issued under  ss. 4  and  6  by the Commissioner acting  under  the  functions entrusted  to  him by this notification would  therefore  be invalid and must be struck down.  We may add that since then the  President  has  made another  notification  under  Art. 258(1)   of  the  Constitution  whereby   Commissioners   of Divisions  in the State of Gujarat have been entrusted  with functions  under  the Act with the consent  of  that  State. That  notification is however of July 12, 1961,  and  cannot cure  the present notifications under ss.4 and 6 of the  Act as they are anterior date. In  view of our decision on the nature of  the  notification under Art. 258(1) dated July 24, 1959, it is unnecessary  to consider the other points raised on behalf of the appellant. We  would therefore allow the appeal with costs,  set  aside the order of the High Court and allow the writ petition  and strike  down the notifications under ss. 4 and 6 of the  Act made  by the Commissioner of Baroda for acquisition  of  the appellant’s property. ORDER BY COURT In  accordance with the opinion of the majority, the  appeal is dismissed with costs. 344