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PETITIONER: STATE OF BOMBAY (MAHARASHTRA)

       Vs.

RESPONDENT: SHIVBALAK GOURISHANKER DUBE & OTHERS

DATE OF JUDGMENT: 31/08/1964

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C. AYYANGAR, N. RAJAGOPALA

CITATION:  1965 AIR  661            1965 SCR  (1) 211

ACT:     Delegation  of  power-Whether  includes  delegation   of duties  necessary for exercise of the  power-Bombay  Tenancy and  Agricultural Laws Act, 1948 (Bom. 67 of 1948), ss.  65, 83.

HEADNOTE:    A  notice was served by the appellant-State inviting  the attention   of  the  respondents  to  the  fact   that   the agricultural  lands  of  which  they  were  the  owners  had remained  fallow, and intimating to them that the  appellant would resume management of the said lands under s. 65 of the Bombay   Tenancy  and  Agricultural  Laws  Act  unless   the respondents  took steps to bring them under  cultivation  in the  following agricultural season.  It appears that  later, an enquiry was made under the orders of the Deputy Collector as  a  result  of  which he passed  an  order  under  s.  65 directing that the lands should be resumed by the State  for cultivation.   Having  failed in their efforts  to  get  the order of the Deputy Collector altered, the respondents filed a suit for a declaration that the order passed by the Deputy Collector  was  illegal  and  void and  that  it  could  not dispossess  them of the lands which belonged to  them.   ’Me suit  was dismissed.  The respondents appealed to  the  High Court   and  it  found  that  on  a  fair   and   reasonable construction  of  s. 65(l) read with s.  83,  the  appellant could delegate its powers prescribed by s. 65(l), but  could not delegate its duty incidental to the exercise of the said power,  and  as it reversed the decree passed by  the  trial Court.  On appeal by special leave : HELD : (i) Section 83 authorises the delegation not only  of the powers mentioned by it, but also the duties or functions which are incidental to the existence of the powers and  are integrally connected with them [216 A-B]    Edward  Liso  Mungoni  V.  Attorney-General  of  Northern Rhodesia, [1960] 2 W.L.R. 389, referred to.   (ii)    Section  65(l)  does not require that  the  Deputy Collector  mini  himself go to the agricultural  fields  and enquire on the spot whether they were lying fallow.  He may, if he so desires, record evidence himself, or the  recording of the evidence and the actual inspection on the spot can be

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left to some subordinate officer.  The report of such  local inspection and the record of the evidence collected in  that behalf would be forwarded to the Deputy Collector, and  that would  be the material oil which he would hold  the  enquiry himself.  This procedure does not involve any delegation  at all. [217 H; 218 B; 217 G-H].   Allingham V. Minister of Agriculture and Fisheries, [1948] 1 AB.  E.R. 780, distinguished.   Nathubhai Gandabhai Desai V. State of Bombay & Ors. I.L.R. [1955] Bom. 407, referred to.

JUDGMENT:    CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  269  of 1962.    Appeal  by  special leave from the  judgment  and  decree dated  October  5, 1959 of the Bombay High  Court  in  First Appeal No. 712 of 1955. 212 S.   G. Patwardhan and B.R.G.K. Achar, for the appellant. G.   S. Pathak and Naunit Lal, for the respondents.  The Judgment of the Court was delivered by    Gajendragadkar C. J. What is the scope and effect of  the provisions  contained in section 65 read with S. 83  of  the Bombay  Tenancy and Agricultural Lands Act, 1948 (No. 67  of 1948)  (hereinafter  called  the Act),  that  is  the  short question which arises for our decision in this appeal.   The four respondents are the owner of certain agricultural lands in  Deokhope in Taluka Palghar in Maharashtra.  On the  23rd June,  1951, a notice was served by the appellant, State  of Bombay  (now  Maharashtra), inviting the  attention  of  the respondents to the fact that the agricultural lands of which they were the owners had remained fallow since 1948-49,  and intimating  to  them that the appellant State  would  resume management  of the said lands under s. 65 of the Act  unless the  respondents took steps to bring them under  cultivation in the following agricultural season.  The respondents  were told  that in case they wanted to bring the said lands  into cultivation, they should send intimation of their  intention to do so within 15 days from the date of the receipt of  the notice.   It appears that later, an enquiry was  made  under the orders of the Dy. Collector as a result of which on  the 30th  December,  1951,  he  passed  an  order  under  s.  65 directing that the lands should be resumed by the Government for  cultivation.  Thereafter, representations were made  by the  respondents to the Dy.  Collector as a result of  which about  8 acres and 30 ghunthas of land were released on  the ground  that  the owners had taken steps to  cultivate  that portion of the lands in pursuance of the direction given  to them  by the earlier notice.  The order passed ’by  the  Dy. Collector  in  respect of other lands  remained  unaffected. Thereafter, respondent No. 1 approached the Collector by his application  dated 24th March, 1952.  This application  was, however,  rejected.  The respondents then moved the  Revenue Department,  but that effort also failed.  That is  why  the present  suit was filed by them on the 23rd  December,  1953 for  a  declaration  that  the  order  passed  by  the   Dy. Collector  on the 30th December, 1951 was illegal and  void, and  that  it could not dispossess them of the  lands  which belonged to them.  As a consequence of the declaration  thus claimed  by  them, the respondents, asked for a  decree  for possession and mesne profits against the appellant.   The  appellant disputed the respondents’ claim.  It  urged that  the suit as framed was barred under S. 63 (I ) and  s.

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85 of 213 the  Act.   On  the merits,  the  appellant  challenged  the correctness of the allegations made by the respondents.   It was averred by the appellant that the requisite enquiry  had been  duly  and  properly made and the  impunged  order  was passed  in  accordance with the relevant provisions  of  the Act.   According  to  the  appellant,  civil  court  has  no jurisdiction to consider the propriety or reasonableness  of the  conclusion  reached  by the Dy.   Collector  before  he passed the impunged order.   The  learned trial Judge who framed appropriate issues  on these  pleadings, in the main upheld the contentions  raised by  the  appellant.  In his opinion, the  present  suit  was barred  by sections 65 (1) and 85 of the Act.  He also  held that the declaration made by the Dy.  Collector was not null and  void.  The plea raised by the respondents  against  the validity  of the statutory provisions contained in  sections 65  & 66 of the Act was rejected by him, because he  thought that the said sections did not contravene the provisions  of Articles  19 and 31 of the Constitution.  The learned  Judge also  found  that  the grievance  made  by  the  respondents against the propriety or reasonableness of the enquiry  made prior  to  the  passing  of  the  impunged  order  was   not justified.   In  the  result,  the  respondent’s  suit   was dismissed.    The  respondents then carried the matter before the  High Court  by an appeal, and on their behalf  three  contentions were raised before the High Court.  It was first argued that the  lands in respect of which the impunged declaration  was made  were  not  lands as defined by the Act,  and  so,  the relevant  provisions of the Act were inapplicable.   It  was then  urged  that before the Government could  exercise  its powers  under s. 65 of the Act, a duty was cast on it to  be satisfied  that  the lands had remained uncultivated  for  a period of two years before their management was assumed; and this condition had not been satisfied, because delegation by the State Government to subordinate officers of its duty  to satisfy  itself, or its power to make the  declaration,  was not justified in law.  It was also contended that since  the satisfaction had to be by the authority who was competent to make the declaration, he could not delegate any part of  his function and duty in that behalf and the said authority  had to hold the enquiry himself.    The   High   Court  has  upheld  the  second   of   these contentions.   It  has found that on a fair  and  reasonable construction  of  s. 65(1) read with s.  83,  the  appellant could delegate its powers prescribed by s. 65(1), but  could not delegate its duty incidental to the exercise of the said power.  That is why the decree passed 214 by the trial Court has been reversed on this ground and  the respondents’ suit ’has been decreed.  Consistently with this decision, an appropriate order has been passed in regard  to the delivery of possession and the payment of mesne  profits as  claimed by the respondents.  It is against  this  decree that the appellant has come to this Court by special  leave; and  the  only point which is raised on its  behalf  by  Mr. Patwardhan  is  that  the view taken by the  High  Court  in regard  to the scope and effect of the provisions  contained in S. 65(1) read with S. 83 is not well-founded.               Section 65(l) reads thus               "If  it appears to the State  Government  that               for  any two consecutive years, any  land  has               remained   uncultivated   or  the   full   and

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             efficient  use of the land has not  been  made               for  the purpose of agriculture,  through  the               default  of  the  holder or  any  other  cause               whatsoever  not beyond his control  the  State               Government  may, after making such enquiry  as               it thinks fit, declare that the management  of               such  land shall be assumed.  The  declaration               so made shall be conclusive." Along  with this section, it is necessary to refer to s.  83 which reads thus:-               "The  State subject to such  restrictions  and               conditions  as it may impose, by  notification               in  the Official Gazette, delegate to  any  of               its   officers  not  below  the  rank  of   an               Assistant  or Deputy Collector, all or any  of               the powers conferred on it by this Act." The High Court appears to have taken the view that though it was competent to the State Government to delegate its powers under s. 65(l), it could not delegate its duty or obligation to  make an enquiry as a result of which the declaration  in question  can be made.  The State Government, says the  High Court, can exercise its authority to make a declaration  and this  authority or power can be delegated under 9.  83;  but before such authority or power can be exercised, there is an obligation  imposed  on  the State  Government  to  make  an enquiry as to whether the agricultural land in question  has remained uncultivated or fallow for the period prescribed by the  statute,  and the obligation or duty to  hold  such  an enquiry  which  is distinct and separate from the  power  or authority to make a declaration consequent upon the enquiry, cannot be 215 delegated under s. 83.  It is common ground that the enquiry was  not made by the State Government and if the view  taken by  the High Court is right that the obligation or  duty  to hold  the  enquiry cannot be delegated,  then  the  impugned declaration would be open to attack because it had not  been preceded by a proper enquiry.  Mr. Patwardhan contends  that the view taken by the High Court is plainly erroneous and we are satisfied that this contention is well-founded.    Section  83 in terms authorises delegation by  the  State Government  to any of its officers of the  specified  status and  the delegation can be in respect of all or any  of  the powers  conferred on the State Government by the  provisions of  the  Act.   Now, it seems to us that  the  authority  to delegate  all  or  any  of the  powers  which  is  expressly conferred on the State Government by s. 83 would be rendered almost  meaningless  if  the duty to hold an  enquiry  as  a condition  precedent for the exercise of the said  authority cannot be delegated.  In the context, the power which can be delegated is inseparable from the enquiry which must precede the  exercise of the power, and so, in order to make  s.  83 effective it is necessary to hold that the delegation of the power  authorised  by  the  said  section  must  necessarily involve  the delegation of the discharge of  obligations  or functions  which are necessary for the exercise of the  said power.   If the view taken by the High Court is right it would mean that  whereas the State Government can authorise any of  the officers  belonging to the specified class to  exercise  its powers under s. 65(l), it must hold the preliminary  enquiry itself  without  delegating the authority to’ hold  such  an enquiry to any officer.  It is hardly necessary to emphasise that this position is so plainly illogical that it would  be unreasonable  to recognise the validity of the authority  to

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confer powers while insisting that the conditions  precedent for  the exercise of the powers are of such a  separate  and distinct  character  that  in  order  to  satisfy  the  said conditions,  the  required enquiry must be held not  by  any delegate of the State Government but by the State Government itself.   In  coming  to the conclusion that  the  duty,  as distinct from the power, cannot be delegated, the High Court was apparently influenced by the fact that there would be no appeal  against  the enquiry and the conclusion  reached  at such  an enquiry.  We do not propose to express any  opinion on  this  part of the reasoning adopted by the  High  Court; that will depend upon the construction of s. 86 of the  Act. But  whatever  may  be  the  position  in  respect  of   the competence -of an appeal, we are satisfied that on 216 a fair and reasonable construction of s. 83 it must be  held to authorise the delegation not only of the powers mentioned by it, but also of duties or functions which are  incidental to the ,exercise of the powers and are integrally  connected with them.     In  this  connection,  we  may  usefully  refer  to  the decision  of  the Privy Council in Edward  Liso  Mungoni  v. Attorney-General of Northern Rhodesia(1).  In that case,  in dealing  with a similar question under regulation  16(1)  of the Emergency Powers Regulations, 1956 of Northern Rhodesia, made  by the Acting Governor of Northern Rhodesia under  his statutory powers, the Privy Council has held that the  power and the duty under reg. 16(1) were so interwoven that it was not  possible to split the one from the other so as  to  put the  duty  on  one  person and the  power  in  another;  the regulation contained not so much a duty, but rather a  power coupled  with a duty, and he who exercised the power bad  to carry  out the duty.  In the result, the Privy Council  took the view that in delegating his functions under reg.  16(41) the Governor could delegate both the power and duty together to ,one and the same person-he could not delegate the  power to  another  and  keep  the duty  to  himself.   It  is  not difficult  to  realise  what  anomalous  consequences  would follow  if it is held that the power can be  delegated,  but not the duty to hold the incidental enquiry which alone  can lead  to the exercise of the power.  In substance, the  view taken by the High Court would make the authority to delegate the power wholly meaningless.  In fairness, we ought to  add that  Mr.  Pathak who appeared for the respondents  did  not seek to support this part of the High Court’s decision.    It  appears  that a result of the decision  of  the  High Court  in  the  present case,  the  Maharashtra  Legislature thought it prudent to make the necessary amendment in s.  83 of the Act.  Section 29(a) of the Amending Act provides that for the words "powers conferred the words "Powers  conferred or duties impose&’ shall be and shall be deemed to have been substituted   ,on  the  31st  day  of  October,  1949;   and accordingly,  the delegation or the purported delegation  by the  State Government under s. 83 of any duty imposed  shall (notwithstanding the judgment, decree or order of any Court) be  deemed always to have been valid, and the  discharge  of any such duty by any officer shall for all purposes be valid and  effective  and shall not be called in question  in  any Court  on the ground only that the State Government  had  no power to delegate the duty; and clause (b) provide that (1)  [1960] 2 W.L.R. 389. 217 to the marginal note the words "and duties" shall be  added. It   is  not  surprising  that  in  view  of   the   serious consequences  which  would have inevitably followed  if  the

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judgment   under   appeal  had   remained   unchanged,   the legislature   thought  it  necessary  to  make  a   suitable amendment in order to avoid any interruption in the peaceful and smooth working of the,, relevant provisions of the Act.   Realising  the  infirmity in the view taken  by  the  High Court,  Mr. Pathak attempted to support the decision of  the High  Court  on another ground.  He argued  that  since  the enquiry  was made by the Talathi and the Mamlatdar under  s. 65  and not by the Dy.  Collector, the declaration  made  by the  Dy.   Collector  was  invalid.   In  other  words,  the argument  is  that  the State Government  may  have  validly delegated  its powers under s. 65(l) to the Dy.   Collector, but  the  Dy.   Collector who is a  delegate  of  the  State Government cannot, in turn, delegate a part of his power  or authority  to a subordinate of his own, and that is what  he has done in the present case.  This argument proceeds on the basis  that in exercising his powers under s. 65 ( 1 ),  the Dy.   Collector  must himself hold the  enquiry  and  cannot delegate  the  function of holding such an  enquiry  to  any other subordinate revenue officer.  There is no doubt that a delegate  who has received the authority from the  principal cannot, in turn, delegate his own authority to a delegate of his own, but there is hardly any question of delegation by a delegate in the present case.  All that s. 65(l) requires is that  the  State Government and therefore its  delegate  may after  making such enquiry as it think,; fit,  declare  that the  management  of  the land shall be  resumed.   In  other words,  in what form the enquiry should be held is a  matter left  entirely in the discretion of the State Government  or its  delegate.  All that the Dy.  Collector has done in  the present  case  is  to direct  his  subordinate  officers  to collect  material  relevant to the purpose of  the  enquiry. The  Talathi went on the spot and ascertained as to  whether the  respondents’ lands were lying fallow for the  requisite period.   He  submitted his report to  the  Mamlatdar.   The Mamlatdar in turn made his report to the Dy.  Collector.  In other  words,  all that the Dy.  Collector has  done  is  to collect  the relevant material, so that he can enquire  into the  question  as to whether the lands are lying  fallow  or not.   This procedure does not, in our opinion, involve  the question of any delegation at all.  The form of the  enquiry and  its  mode  are entirely in the discretion  of  the  Dy. Collector.   Section  65(l) does not require  that  the  Dy. Collector  must  himself go to the agricultural  fields  and enquire on the spot whether they are lying fallow.  He  may, if 218 he so desires, record evidence himself, or the recording  of the  evidence and the actual inspection on the spot  can  be left to some subordinate officer.  The report of such  local inspection and the record of the evidence collected in  that behalf  would be forwarded to the Dy.  Collector,  and  that would  be  the material on which he would hold  the  enquiry himself.   The enquiry is thus hold by the  Dy.   Collector, though  the mechanical work of collecting material has  been entrusted to a subordinate revenue officer.  In such a case, we  do  not  see how the principle that  a  delegate  cannot delegate comes into operation.    In  support of his argument, Mr. Pathak has relied  on  a decision  of the Kings Bench Division in Allingham and  anr. v. Minister of Agriculture and Fisheries(1).  In that  case, the Court held that on the principle of delegatus non potest delegare,  the  Committee exercising its powers  under  reg. 62(1) could not delegate its powers to determine the land to be  cultivated  to its officers and, therefore,  the  notice

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issued in that behalf was ineffective and noncompliance with it  was not an offence.  It, however, appears that  the  War Agricultural  Committee  for  the  County  did  appoint  the Biggleswade  district  Committee as a sub-committee  to  Act under  the  instructions of the executive committee  and  to make    recommendations   to   the   executive    committee. Apparently, they made some recommendations to the  executive officer  and  the  executive officer  accordingly  made  the order.  On these facts, Lord Goddard, C.J., observed that he could  find nothing in the regulations or the statute  which enabled  the  executive  officer to  make  the  order.   The appellants  had  contended before the Court that  they  were entitled to have the decision of the executive committee and no one else on the matter, and this contention was upheld on the  facts  of that case.  We do not see how this  case  can assist  Mr.  Pathak’s  argument in  the  appeal  before  us, because  there has been no delegation to hold an enquiry  as such.   What  the  Dy.  Collector has done  in  the  present proceedings  is  not to delegate his authority  to  hold  an enquiry,  but to get the material necessary for the  enquiry collected  by his subordinate officers.  After the  material was  thus collected, he examined the material himself,  held the  enquiry  and  came to conclusion  that  the  lands  had remained  fallow and uncultivated for the requisite  period. We  are, therefore, satisfied that the English  decision  on which  Mr. Pathak relies does not assist him in the  present case. This contention appears to have been raised before the High (1)  [1948] 1 All E.R. 780. 219 Court  and has been rejected by it and, we  think,  rightly. In fact, in Nathubhai Gandabhai Desai v. The State of Bombay and Ors.(1), a similar contention was raised before the High Court  and had been rejected by it.  In that case, the  High Court has field that inasmuch as the Legislature has left it entirely  to the discretion of the State Government  or  the delegated  authority  to  hold such  enquiry  as  it  thinks proper,  if an enquiry Is held the Court cannot consider  as to whether the enquiry was a proper one or whether a  better enquiry  would not have yielded better results.   This  view has been consistently followed in the Bombay High Court  and we see no reason to doubt its correctness. In the result, the appeal succeeds, the decree passed by the High  Court  is  set  aside and  that  of  the  trial  Court restored.  There would be no order as to costs throughout. Appeal allowed. (1) I.L.R. [1955] Bom. 407. 220