JAYANTILAL AMRIT LAL SHODHAN versus F.N. RANA AND OTHERS

November 5

JAYANTILAL AMRIT LAL SHODHAN v. F.N. RANA AND OTHERS

(P.B. GAJENDRAGADKAR, K. SUBBA RAO, K.N. WANCHOO, J.C. SHAH AND RAGHUBAR DAYAL JJ.)

Constitution of India, Arts. 2S8(1), 13(1)-Notification by President entrusting functions to State Officer-If has force of law-"Save as expressly provided in the Constitution", interpreta-tion of-Delegation of powers by State officer-" Enquiry and Report by Collector"-Nature of functions-Bombay Reorganisation Act, 1960 (11 of 1960), ss. 2(1i), 87-Land Acquisition Act, 1894 (I of 1894), ss. 4, SA, 6.

The President of India issued on July 24, 1959, notification under Art. 2S8(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 purpose" 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 exercise! he powers entrusted by the notification issned by the President on July 24, !9S9, the Commissioner of Baroda Division notified under s. 4(1) of the Land Acquisition Act I of 1894, the appellants' land as being needed for 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 thereupon moved the High Court of Gujarat under Arts. 226 and 227 of the Constitution for writ but his petition was dismissed. The case of the appellant was that (I) the President's notification under Art. 2S8(1) was ineffective after the partition since the con-sent of the Government of the newly formed State of Gujarat to the entrustment of functions to its officers bad not been obtained as required by Art. 2S8(1); (2) the proceeding under s. SA of the Act being quasi-judicial in character, authority to make report thereunder could not be delegated by the Commissioner nor could be consider such 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.

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.

Jayanti/al Amrit Lal Shodhan v. F.N. Rana

It cannot be assumed simply because the President is the execu-tive bead 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, l.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 Constitu-tion 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 limited interpretation. 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 with-standing 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 execu-tive and be regarded as such.

(ii) The Indian Constitution does not make rigid division of functions and although it is possible to characterise with pre-cision that an agency of the State is executive, legislative or judicial, it cannot be said that 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 judicial or quasi-judicial enquiry and the report made by the Collector under s. SA 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 notification acted within the authority conferred on him.

Per Subba Rao and Wanchoo, JJ.-Article 258(1) interpretted 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

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 qu,alified by the word 'executive', must in the context mean functions of the same nature as the executive power of the Union.

Jayantilal Amrit Lal Shodhan v. F.N. Rana

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.LR. [1962] 2 All. 310, disapproved. The basic concept of law is that it should consist of body of rules which govern the conduct of persons forming the commu-nity in which it is enforced and which that community enforces throttgh necessary machinery.

So judged, the notification issued by the President under Art. 258(1) of the Constitution has not the force oflaw 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 rule or body of rules regulating the conduct of person or persons that can be enforced in court of law, having been passed by 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 cottrts but unless it prescribes rule of conduct which person or persons must obey there can be no ques-tion of its being enforced by court oflaw 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 execu-tive order which the courts must recognise and an order of the Commissioner of Division in pursuance of it will have the same effect as the order of the Central Government. But it cannot be said that notification of the President under Art. 258(1) effects an 'amendment of the law in connection with which the order is

made. It was therefore, not correct to say that the definition of 'appropriate Government' ins. 2(ee) of the Act was amended because of the notification in question.

Jayantila/ Amrit Lal Shodhan

The Edward Mills Co. Ltd. v. State of Ajmer, (1955) 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.LR. [1949]_ Mad. 371, King Emperor v. Abdul Hamil, (1923) I.LR. II Pat. 134 and Ramendrachandra Ray v. Emperor, (1931) I.LR. XVlll Cal. 1303, held inapplicable.

F.N. Rana

State of Bombay v. F.N. Balsara, (1951] S.C.R. 682, consi-dered.

Chanabassapa Shivappa Tori v. Gurupadappa Murgeppa Hanji, I.LR. (1958] Mys. 48 and Haji K.K. Madu v. Food Inspector Kozhikode, I.LR. [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 to act 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 do-nn.

CIVIL APPELLATE JURISDICTION : Civil Appeal

No. 104 of 1963.

Appeal from the judgment and order dated Sep-

tember 14, 1962, of the Gujarat High Court in Special Civil Application No. 145of1961.

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 I of 1894, the Commissioner, Baroda Division, State of Gujarat, exercising functions entrusted to him under notification dated July 24, 1959, issued by the Presi-dent, under Art. 258(1) of the Constitution, notified that piece of land Part of Final Plot No. 686, Ellis

Shah J.

Bridge Town Planning Scheme, belonging to the appe-. llant was likely to be needed for public purpose

. . llant was likely to be needed for public purpose Jayantzlal Amrzt viz., construction of Telephone Exchange Building Lal Shodhan in Ellis Bridge, Ahmedabad.

Notice was thereafter served by the Additional Special Land Acqui~ition Officer, Ahmedabad (who was appointed by the order of the Commissioner to perform the functions of Collector), upon the appellant under s. SA 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 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, Ahmed-abad, was appointed under cl. (el 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.

F.N. Rana ShahJ.

The appellant then moved the High Court of Gujarat under Arts. 226 and 227 of the Constitution for writ of mandamus or other appropriate write setting aside the notifications dated September 1, 1960, and January 11, 1961, and the proceedings under s. SA of the Land Acquisition Act, I of 1894, held in respect of the land of the appellant and the decision of the Commissioner, Baroda Division, and for writ setting aside the notification dated January 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 (l)(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

Land Acquisition Act, I of 1894, purporting 1963 -to act upon the notification issued by the President on July 24, 1959, under Art. 258(1)Jayantilal Amrit of the Constitution entrusting the functions Lal Shodhan of the Union Government relating to acquisi-v. tion of land to the Commissioners of Divisions F.N. Rana in the State of Bombay, because those func-Shah J. tions {;Ould not be performed after the State of Bombay ceased to exist, and the State of Gujarat came into existence, and the con-sent 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. SA of the Land Acquisition Act being quasi-judicial, authority to make 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, legisla-tive power in respect of acquisition and requisitioning of property is vested. under entry 42 in the Concurrent List in the Union Parliament and the State Legisla-tures. But by virtue of Art. 372, the Land Acquisi-tion Act I of 1894 relating to compulsory acquisition of land for public purposes continues to remain in force. The Land Acquisition Act, I 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 notifica-tion 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

1963 trenches etc. The expression "appropriate Govern--ment" is defined by cl. (ee) ofs. 3 in relation to acquisi-Jayantilal Amrit tion of land for the purposes of the Union, the Central Lal Shodhan Government, and in relation to acquisition of land v. for any other purposes, the State Government. Any F.N. Rana person interested in any land notified under s. 4(1) may within thirty days after the issue of the notifica-Shah J. tion 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 opportu- · nity 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 report containing his recommenda-tions on the objections. The decision of the appropria-te Government on the report is made final by sub-s. (2) of s. SA. The expression "Collector" is defined in s. 3(c) as meaning the Ccllector of district, and includes Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of Collector under the Act. By s. 6 the appropriate Government is authori-sed to make declaration, if the appropriate Govern-ment is satisfied after considering the report under s. 5A sub-s. (2) that any particular land is needed for public purpose. The declaration so made is by sub-s. (3) of s. 6 conclusive evidence that the land is needed for public purpose or for Company, as the case may be. By s. 7 the appropriate Govern-ment 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 compen~ation which in his opinion should

5S.C.R.

be allowed for the land, and the apportionment

of compensation among persons known or believed ~-. to be interested of whose claims he has information Jayanti/al Arnrit (ss. 9 & 11). It is clear from this brief resume that Lal Shodhan where land is acquired for the purposes of the Central v. Government, notification under ss. 4 and 6 may be F.N. Rana issued by the Central Government and inquiries Shah J. 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.

Jn exercise of the powers conferred by Art. 258

of the Constitution the President of India on July 24, 1959, issued 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 I of 1894, in relation to acquisi· tion 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 acquisi-tion 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 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 smooth bifurca-tion 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-

1963 diately before the appointed day, is holding or dis-. . charging the duties of any post or office in connection Jayantilal Amrit with the affairs of the State of Bombay in any area Lal Shodhan which on that day falls within the State of Mahara-v. shtra or Gujarat shall, subject to an order by com-F.N. Rana petent authority, continue to hold the same post Shah J. or office in that State and shall be 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 provi>ion was made for maintaining the territorial extent of the laws even after the appointed day. It was enacted· that provisions of Part II (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 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, ordi-nance, 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 func-tioning 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

5S.C.R.

State of Gujarat was issued by the President, and 1963 the authority of the Commissioner to notify for acqui-. . sition of the land of the appellant was sought to beJayantzlal Amnt derived solely from ss. 82 and 87 of the Bombay Re-Lal Shodhan organisation Act. v.

F.N.Rana

The appellant contended that the power exercis-

able by the President being executive in character, the functions which may be entrusted to 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 Commis-sioners of the new State of Gujarat after May I, 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. I containing Arts. 245 to 255 dealing with distribu-tion of legislative powers and Ch. JI containing Arts. 256 to 261 dealing with "administrative relations between the States'', and it was submitted that Art. 258, occurring as it does in Cb. II of Part XI, must be deemed to deal with matters administrative or executive and not legislative. Founding the argument upon the title of Ch. II 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 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 direc-tio?s 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.

Shah J.

The plea about the placing of Art. 258 in Ch.

II and the character of the two preceding Articles as indicative of the character of the powers conferred

1963 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. II, Jayantila/ Amrit deal with matters legislative and judicial. At this Lal Shodhan stage Art. 258 may be set out:

"(1) Notwithstanding anything in this Con-stitution, the President may, with the consent of the Government of State, entrust either conditionally or unconditionally to that Govern-ment or to its officers functions in relation to any matter to which the executive power of the Union extends.

v. F.N. Rana Shah J.

(2) law made by Parliament which applies

in any State may, notwithstanding that it relates to 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 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 ad-ministration incurred by the State in connection with the exercise of those powers and duties."

By the first clause, the Pre>ident 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 legisla-tive authority of Parliament in matters exclusively within its competence to confer powers and impose duties upon the State or officer> 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

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. Jn 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 pla<:ed in the category of miscellaneous functions. But it is now well settled that functions which do not fall strictly within the fiel<l legislative or judicial, fall in the residuary cla~s and must be regarded as executive.

Jayantilal Amrit Lal Shodhan v.

F.N. Rana

Shah J.

In Halsbury's Laws of England, 3rd Edn. Vol. 7, Art. 409 p. 192 it is observed:

"Executive Functions are incapable of Com-

prehensive difinition, 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 nationa-lised industries and services, the direction of foreign policy, the conduct of military opera-tions, and the provision or supervision of such services as education, public health, transport, and state assistance and insurance."

Similarly in Wade and Phillips, Constitutional Law

6th Edn, at p. 16 it is observed:

"Jt i~ customary to divide functions of govern-

ment 1~t~ thr.ee classes, legislative, executive (or adm1mstrat1ve) and judicial."

!n Rai ~ahih R.am Jawaya Kap~r v.The State of Punjab(l> m dealmg with the question whether publi~hing printing and selling of text books for the use of student~ may be regarded as an executive function of the State (I) [1955] 2 S.C.R. 225.

Government, Mukherjea Court observed:

C.J., speaking for the

Jayanti/a/ Amrit

"It may not be possible to frame an exhaustive

Lal Shodhan

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."

F.N. Rana

Shah J.

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 essen-tially legislative in character is frequently entrnsted to the executive. Similarly judicial authority is also entrusted by legislation to the executive authority: Harinagar Sugar Mills Ltd. v. Shyamsundar(l), 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 exe-cutive has also been empowered by statute to exercise functions which are legislative andjudicial in character, and in certain instances, powers are exercised which appear to partake at the same moment of legislative, executive and judicial characteristics. Jn the com-plexity 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 (!) [1962] 2 S.C.R. 339.

that 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 Presidential notification only executive functions of the Central Government may be en-trusted 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 I of l 894, in relation to acquisition of land for the purpose of the Union" have been entrusted to the Commissioners of Divisions. The power exer-cisable by the appropriate Government under s. 55 of the Land Acquisition Act to frame Rules under the Act has not been entrusted to the Commissioner. Whether such 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 exercis-able 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 financial emergency under Art. 360; to make rules regulating the recruit-ment and conditions of service of perwns appointed to posts and services in connection with the affairs of the Union under Art. 309-to enumerate 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 beirg de-legated or entrusted to any other body or authority

Jayanti/a/ Amrit Lal Shodhan

F.N. Rana

Shah J.

1963 under Art. 258(1 ). The plea that the very nature of these powers is such that they could not be intended Jayanti/a/ Amrit to be entrusted under Art. 2 58t l) to the State or Lal Shodhan officer of the State, and therefore that clause must v. have limited content, proceeds upon an obvious F.N. Rana fallacy. Those powers cannot be delegated under Art. 258(1) because they are not the powers of the Shah J. Umon, and not because of their special character. There is vast array of other powers exercisable by the President-to mention only 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 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. 2ld) of the Bombay Reorganisation Act, 11 of 1960. It is necessary in the first instance carefully to analyse the three stages of the con5titutional 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;

liii) exercise of the function by the State or its officer, on behalf of the Union.

5 S.C.R.

By Art. 258(1) the President as the head of the Union 1963 is competent to entrust functions in relation to any . matter to which the executive power of the Unionlayanrilal Amnt extends to any State Government, or officer of that Lal Shodhan Government. These are functions of the Union v. and not of the President. There is no doubt thdt the F.N. Rana investment of power or authority upon the President Shah J. i> part of the Constitution and has necessarily the force of law. There is however controversy between the parties about the true character of the entrust-ment of the functions by the President. The character of the exerdse 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( I) 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 Consti-tution 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 Ill relation to functions entrusted undef cl. (1) of Art. 258 of the Constitu-tion to the Government of State, the State Govern-me~t acting within the scope of the authority given to 1t 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 Constitu-tion and the e!'ecutive power .of the Union by Alt. 73 extends subject to the prov1s10ns of the Constitu-tion:

(a) to the matters with respect to which Parlia-ment has power to make laws; and

(b) to th~ ~x~rc!se of such rights, authority and Junsd1ct10n as are exercisable by the Government of India by virtue of any treaty or agreements:

Provided that the executive power referred to in sub-cl.

. . (a) shall not, save as expressly provided in the Consti-Jayantilal Amnt tution or in any law made by Parliament, extend Lal Shodhan in any State to matters with respect to which the v. Legislature of the State has also power to make laws. F.N. Rana Prima facie, the executive power of the Union extends to all matters with respect to which Parliament has ShahJ. 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 provision in the Constitution expressly enacts that the executive power of the Union shall, within the meaning of Art. 73(1) proviso, extend to matter in respect of which the Legislature of 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 Consti-tution" is not susceptible of that limited interpreta-tion. 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 liffiltation enacted by the proviso. Article 298, which, inter alia, extends the power of the Union to the "acqui~ition" 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 pla~ed, merely enact provisions in the Constitution for giving directions to the State Govern-ments in respect of certain specified matters or purpose,. 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 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

by virtue of the legislative entry to which it relates.

It is therefore open to the President, subject to the . ~ . proviso to cl. (I) of Art. 73, with the consent of the Jayantzlal Amrit State Government, to entrust executive power of the Lal Shodhan Union relating to acquisition of land either to the v. State or any officers of the State. F.N. Rana

We are in this appeal not concerned to ascertain

Shah J.

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 exer-cised by the President under Art. 258(1) entrustmg functions to the State or its officers. The President is indisputably the executive head 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 noti-fication dated July 24, 1959, issued by the President, power was entrusted to the Commis&ioner, Baroda Division, in respect of matters relating to acquisition of land under the Land Acquisition Act, 1894. By item 42, List III, the subject of acquisition of property falls within the Concurrent List and the Union Parlia-ment has power to legislate in respect of acquisition of property for the purpose of the Union, and by virtue of Art. 73 (l)(a) the executive power of the Union extends to the acquisition of property for the Union. By Art. 298 of the Constitution ~he executive power of the .Union extends to the carry-mg ~n of any tr.ade or busmess and to the acquisition, holdmg and disposal of property and the making of contracts for any purpose. The expression "acqui-~ition, ~olding an.ct disposal of property" would, 111 our Judgment, mclude compulsory acquisition of property. That is provision in the Constitution which within t~e meaning of the proviso to Art. 73(1) expressly provides that the Parliament may acquire property for th~ U?rnn a1:1d consequently executive P.ower of the Umc.m m relat10n to compulsory acquisi-t10n of property rs saved thereby, power of the State to acquire land notwithstanding.

1963 . In this background we may consider the effect of the Presidential notification. It cannot be and Jayanti/al Amrit has not been denied that it was open to the Legisla-Lal Shodhan ture by making an express provision in the Act tG v. entrust the functions ot the Central Government F.N. Rana that is to confer powers and impose duties under Art. 258(2) in relation to matters under ss. 4, SA, 7, 9 and Shah J. 11 and related sections to Commissioners of Divisions in the State. Such entrustment of power would not ·be open to challenge on the ground that it was unauthorised. If entrusted by enactment, it would have the force of law. It was open to the Parliament by appropriate legislation mcorporated 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. lsrne of notifi-cation by the appropriate Government designating the officer to exercise the powers would unquestion-ably have the force of law, within the meaning of s. 2(d). Instead of making detailed provisions and cato.loguing the entrustment of tunctions in the different statutes which may be entr.isted to the authorities of the State by the exercise of legislative power, the Constitution 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 blanket provision enabling the President by notification to exercise the power whkh .the Legislature could exercise by legislation, to entrust function; to the officers to be specified in that behalf by the President and subject to the conditions pres-cribed 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 Govern-ment" 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 --~~-" .. __

. 5 S.C.R. ,, ' SUPRE1\1E COURT REPORTS ~ - -

\ - - -sioneibfthe Division having territorial jurisdiction over. 1963 the area in which the land is situate'', -were deemed . -to be substituted; In other words, by the is&ue of the. Jayantilal Amrit Presidential. notification, the Land Acquisition Act. Lal_ Shodhan must be deemed pro tanto amended; It would be v. difficult to regard such an amendment· a~ not having F.N. Rana the force of law. -.

F.N. Rana Shah J.

In this connection we may, refer to the ·decision of this Court. in. The Edward Mills Company Ltd: v. The State of Ajmer<• l, which illustrates the view. which we have expressed. It was held.in the Edward. · Mills' case<[1]l that an order made under s. 94(3) of the.Government of India Act, 1935, was, notwitb,. standing the repeal of the Government of'Inaia Act, 1935, by Art. 395 of the Constitution; law. in force. By s. 94(3) of the Government of India Act; 1935,. · Chief Commissioner's Province had to be adminis-tered by the Governor-General. ai;ting to such extent as be thinks fit through the Chief Commissioner to be appointed by him m his. discretion. On March 16, 1949, the Central Government issued notifica-tion in exercise of its powers under s. 94l3) of the , Government of India Act, 1935, directing. that .. the functions of the appropriate Government under the Minimum Wages Act, II of 1948;. would in respect of evef} Chief Commissioner.'~ Province be exercised · by the Chief· Ccmmissioner. ··After the·. commence---ment of the 'Constitution the Chief Commhsioner: of Ajmer purporting to act as the appropriate Govern-ment published 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. I of the Schedule, and issued the final notification directing that "the employment in textile industry" be added in Part I of the schedule; The validity•of the orders of the Chief Commissi.:mer. 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 (I) [1955] l S.C.R. 735. .1963 Art. 239 of the Constitution, the Chief Commissioner -of Ajmer was not competent,· after the enactment of the Jayantilal Amrir Constitution; to function as the appropriate Govern-La/ Shodhan ment under the Minimum Wages Act and therefore v. all steps taken by the Chief Commissioner under the F.N. Rana . provisions of the Act including the issue of the final notification fixing the minimum rates of wages for Shah J. · the employment in the textile mills in the State of -·· · Ajmer was'illegaland ultra vires. The question which therefore fell to be determined in the Edward Mills' case<[1]J was whether the order made by the Central Government under s. 94(3) of the Govern-· ment of India Act, 1935, could be regarded as "law in force" within the meaning of Art. 372 of the Consti-tution. It was urged that an-order may fall within the definition ot existing law but it cannot be included within the expression "law in force" in Art. 372 of the Constitution.. Mukherjea J., speaking f;ir 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 legislative enactment ·· but also regtilation or order which has the force . of law, and that an-order made by the Governor-General under s. 94(3) investing the Chief Commissioner ·with authonty to administer province is really in the nature of 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 Artide. Jn our view, the Edward Mills' case< 1 >, strongly . supports the conclusion that the . . notification issued by the President conferring authori;. ty 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 tho.igh issued by an execu-(1) [19551 I S.C.R. 735. .

tive authority, the Courts are, if challenged, boand 1963 to recognise and give effect to the authority conferred . . by the notification. We see no dhtinctlon in principle Jayanttlal Amrit between the notification which was issued by the Lal Shodhan Governor-General in Edward Mills' case<[1]l, and the v. notification with which we are dealing in this case. F.N. Rana This is not to say that every order issued by an execu-Slzah J. tive authority has the force of law. If the order is purely administrative, or is not issued in exercise of any statutory authority it may not have the force of law. But where general order is issued even by an executive authority which confers power exer-cisable under 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 Muri-gappa<2l 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 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 Reorganisa-tion was, in our view, properly upheld.The second que&tion on which argument was advanced does not require much elaboration. By s. SA 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 ob-jections 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 district or any officer specially appointed by the appropriate Government to perform the function of Collector under the Act. The (1) [1955] 1 S.C.R. 735. (2) l.L.R. (1958) Mysore 48.

1963 statute itself confers authority to appoint Collector . . for the purposes of the Act by the appropriate Govern-Jayantzlal Amm ment, and the Commissioner acting in pursuance Lal Shodhan of the powers conferred upon him by Art. 258(1) v. appointed the Additional Special Land Acquisition F.N. Rana Officer, Ahmedabad, as Collector for the purposes of s. 5A. In so appointing the Additional Special Shah J. Land Acquisition Officer the Commissioner exercised the power which was statutorily vested in the appro-priate 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 Colle~tor 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 Acquisi-tion 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 report of his recommenda-tions on the objections. The report under s. 5A 1s not condition precedent to the issue of the is:sue of the notification under s. 6. The appropriate Govern-ment 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. (l) 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 report containing his recommendations on the

SS.C.R.

objections. Prima facie, such report would be an

administrative report, relying upon which the Govern-~-. ment makes its decision under s. 6 whether or not Jayantilal Amrit to notify the land for acquisition. The decision that Lal Shodhan any particular land is needed for publi<:: purpose v. is an administrative decision and it is for the purpose F.N. Rana of arriving at that decision that the Act requires Shah J. 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 pleader. It is, however, open as s. SA 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 judicial or 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 func-tions entrusted to him under the notification issued by the President. In so acting he did not act in any manner inconsistent with the authority conferred, or which could in law be conferred, upon him. The second objection must also fail.

ln our view therefore the appeal fails and 1s dismissed with costs.

WANCHOO J.-We regret we are unable to agree.

Thi.s is an ~ppeal on 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 measur-i?-g 7,018 ~q. yards. On September 1, 1960, notifica-tion was 1&sued under s. 4 of the Land Acquisition

Wanchoo J.

Act, No. 1 of 1894 (heremafter referred to as the

-. -. Act) by the Commissioner of Baroda acting under Jayantzlal Amm powers entrusted to him by an order of the President Lal Shodhan under Art. 258(1) of the Constitution. By this v. notification the Commissioner notified that 3,200 sq. F.N. Rana yards out of this plot was needed for the construction of telephone exchange building. Further by this Wanchoo [1]· notification the Commissioner appointed the Addition-al 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 Com-missioner made 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 m 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 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 Guja-rat 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

-·----··

·-.....,..

Collector for the purpose of s. 5-A· of the Act, as

1963 -. --

that .would amount to delegation oC his delegated · authority. \ . · .

-. --. . · Jayantzlal Amm

Lal Shodhan v. F.N. Rana

(3) The proceedmgs 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.

Wanchoo J.

The petition was opposed on behalf of the Union

of Inclia and its contention in reply to the three· main grounds was that- ' · ·

(1) the notification uncler 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 Collector within 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 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 withs. 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

'1963 to .the Collector under the Act and ·therefore the · -officer so appointed could carry on the duties a~signed Jayantilal Amrit to the Collector under the Act. · Finally, it held that Lal Shodhan ', proceedings under s.- 5-A of the Act were administra-v. .tive in nature and there was therefore no question F.N. Rana , of delegation 'of any quasi-judicial functions either --rby the notification dated July24, 1959, or bythe order Wanchoo J, of the Commissioner appointing an officer specially to carry on the duties of the Collector under the Act. --The appellaiif- thereupon applied for 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 con-tention 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 entrust-ment of any· other functions of the President, whether 'legislative or quasi-judicial. Therefore any notifica-tion 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 ot executive functions mav not be decisive of the question whether 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 ;Jaw and have the force of Jaw. ·Consequently s; 87 · . of the Reorganisation Act will ·not apply to this · order and it will not be saved as an order or notification . 1having 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 Commis~ioner ;by 1the 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 connec-tion with the affairs of the State of Bombay in any area which on that day falls within the State of Maharashtra

5 S.C.R.

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 Govern- Jayantilal Amrit ment of, or other appropriate authority in, that State. Lal Shodhan This, it is urged, only means that the person holding v. the office of Commissioner immediately before the F.N. Rana appointed day will continue to be Commissioner for the purpose of the State of Gujarat and will be Wanchoo J. 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, it will not &urvive 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 ot the Reorganisation Act.

We must therefore proceed to consider whether functions which can be entrusted to the State Govern-ment 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 :-

"(I) Notwithstanding anything in this Constitu-

tion, the President may, with the consent of the Government of 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."

1963 Stress is laid on behalf of the respondents on the -. -. word "functions" and it is urged that that word Jayantzlal Amrzt is not qualified by the word "executive" and there-La/ Shodhan fore it must be given the widest interpretation and v. would include all kind> of functions, whether exe<::utive, F.N. Rana legislative or even quasi-judicial, if any. Further it is urged that the words following the word ''func-Wanchoo J. tions" 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 decision of the Allah-abad High Court in Amir Khan v. StateCl>, where it was held with reference to s. 124 of the Govern-ment 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 legi&lative 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, lI and III of the Seventh Schedule between Parliament and the legislatures of the States and vests additional power in Parliament to make laws with respect to matters in all the Lists with respect to territories not included in State. Article 247 gives power to Parliament by law to establish additional courts for certain (1) l.L.R. [1962] 2 All. 310.

5 S.C.R.

purposes. Article 248 gives residuary powers of 1963 legisiation to Parliament. Article 249 provides tor -.-. power of Parliament to legislate with respect to matters Jayanulal Amnt in the State List in the national interest in certain Lal Shodhan contingencies. Article 250 give~ power to Parlia-v. ment to legi>late with respect to any matter in the F.N. Rana State List if proclamation of emergency i& in force. Article 251 provides for rescluti.on of any inconsistency Wanchoo J. 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 Parlia-ment to legislate to give effect to international agree-ments. Article 254 provides for resolution of in-consistency 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. lt 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 exercise'.l in the same territory. Article 256 lays down that "the executive power of every State shall be so exercisei as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the exe1:utive power of the Union shall ell.tend to the giving of such directions to State as may appear to the Govern-ment of India to be necessary for that purpose". Article 257 provides for control of the Union over States in certain case<; and lays down that the executive power of State shaU be w exercised as not to impede or prejudice the exercise of the executive power of the Union. It further lays down that the executive

1963 power of the Union &hall extend to the giving of directions to State for certain purposes and also Jayantilal Amrit for payment of certain sums in certain circumstances Lal Shodhan by the Government ot India to the Government v. of State. Then comes Art. 258, the first clause F.N. Rana of which we have already set out. The second clauee provides that law made by Parliament which applies Wanchoo J. in any State may, notwithstanding that it relates to matter with respect to which the Legislature of the State bas no power to make laws, confer powers and impose duties or authorise the conferring of powers and tne impo:.itlon of duties, upon the State or officers and authorities thereof. This clause may be contrasted with cl. (1). lTnder cl. (1) no entrust-ment of tunction can take place without the consent of the State Government but under cl. (2) Parliament may by Jaw confer powers and impose duties in certain circumstances and the consent of the State Govern-ment 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 (I) and the making of law conferring powers '··-.: and duties which in express terms is exercise of legisla-tive power under Art. 258(2). Clame (3) provides for payment of certain sums. Thi& clause in our opiruon 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 State with the consent ot 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 sucfl territory. This Article certain-ly refers to legislative, judicial and executive functionsbut they are referred to expressly and the Constitution-1963 makers did not content themselves with using only -.-. the word "functions". Article 261 provides for full Jayanulal Amm faith and credit to public acts, records and judicial Lal Shodhan proceedings. Clause (2) thereof lays down how such v. full faith and credit as provided in cl. (I) shall be F.N. Rana given and says that it shall be done as provided by law made by Parliament. Clause (3) provides that final Wanchoo [1]· 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 legisla-tive or judicial. Article 262 deals with disputes relating to water and gives power to Parliament by law to provide for adjudication 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 obviou;ly 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 judg-ments 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 {l) is not qualified by the word "executive" and there-fore it may prima facie appear that all kinds of fonctions whether legislative or qua&i-judicial or executive can be entrusted by the President to the State Gov<'rn~ ment or its officers with its consent. The wcrd "functions" in Art. 258 (l) is governed by the words following "in relation to any matter to which the execu·

1963 tive power of the Union extend~". It is said that -these words are ·merely descriptive and are in Jayanti/a/ Amrit accordance with Art. 73 which defines the executive Lal Shodhan power of the Union. Under Art. J3 (1) (a) the execu-v. tive power of the Union extends to matters with re~pect F.N. Rana to which Parliament has power to make laws subject to the proviso thereto. So the argument runs that Wanchoo J. 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 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 execu-tive 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 set-ting in which Art. 258(1) appears. Tt seems. to us that when Art. 258(1) is giving power to the President to entrust his functions to the Government of 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 withm which the functions can be entrusted and this field is to be found in accordance with List I ordmarily; but it is in our opinion legiti-mate to hold 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 State or its officers.Further the language used in Art. 258(1) re-1963 inforces the above conclusion. We may in this connection emphasise the words "entrust functions" Jayantilal Amriz and "with the consent of". Entrustment implies Lal Shodhan agency and when the President is entrusting his func-v. tions to the State Government or its officers, he is F.N. Rana creating an agency to carry out his functions and creation of such agency is more in consonance with Wanchoo J. carrying out the executive power of the Union which vests in the President. Jn 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. (I) 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 Govern-ment. 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 entrust-ment 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 i5 otherwise not bound to carry out such functions. Generally speaking, one does not make 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.

If this entrustment were to be extended to func-tions other than executive some startling results will

1963 follow. There are many provisions in the Consti--. -. tution which give legislative power, delegated or otber-Jayantilal Amrzt wise, to the President and if the word "functions" Lal Shodhan in Art. 258(1) includes within it legislative functions v. and the words that follow the word "functions" only F.N. Rana prescribe the field within which these functions may be entrusted i.e. ordinarily within the limit of List I, Wanchoo J. 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 Ordi-nances 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 State or its officers with respect to matters in List I ordinarily. Such startling result which would follow on the interpre-tation urged by the learned Attorney-General could not possibly have been intended by the Constitution-makers. 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 ordi-narily 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 function relating to that List

to the State Government or its officers. But obviously

-this could not possibly be the intention of the Consti-tution-makers. Similar other legislative powers of Jayanti/al Amrit the President are to be found in Art. 98(3) and Art. Lal Shodhan 101 (2) where he is authorised to make rules, in Art. v. 118(3) which also gives him power to make rules, F.N. Rana in Art. 309 where also the President can make rules, in proviso to Art. 320(3) where the President can Wanchoo J. make regulations, in Art. 357 which provides for exercise of legislative power when proclamation has been made under Art. 356, in Arts. 372 and 372-A which provide for adaptation. 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 specific provision therefor 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 Presi-dent 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 proclamation issued under Art. 356 it has been declared that 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 he 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 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 kind of side-wind to the State Goven;iment or to any of its office1 s. We are therefore of opjnion

1963 that even though the word "function~" in Art. 258 -. -. is not qualified by the word "executive", the effect Jayant1lal Amrit of the words following the word "functions" in Lal Shodhan Art. 2580) is two-fold, namely, to delimit the field v. within which the entrustment can take place, namely F.N. Rana the field covered ordinarily by List I and also to deh-mit the nature of functions to be entrusted, namely, Wanchoo !. · executive functions. We may alsc pomt out that there are provisions practically in all Central Acts conferring rule-making power on the Central Govern-ment. 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 statutes to the Stdte Government or its officers. Such result would not have been intended by the Constitution-makers 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 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 res-pect 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 func-tions, it was not open to the President to entrust this particular function under Art. 258(1) to an officer of tqe State Government in view of the proviso to Art.· 73(1) which lays down the extent of executive

5S.C.R.

power of the Union. Article 73(1) lays down by 1963 sub-cl. (a) that the executive power of the Union -:--. extends to matters with respect to which Parliament Jayantilal Amnt has power to make laws. This would prima facie Lal Shodhan include both Lists I and III. But the proviso lays v. down that the executive power referred to in sub-cl. F.N. Rana (a) shall not save as expressly provided in this Consti-tution or in any law made by Parliament extend in Wanchoo l. any State to matters with respect to which the Legisla-ture of the State ha& also power to make laws. The effect of this proviso is that the executive power of the Union will not 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 m the Constitution by which the power of entrust-ment could be extended to 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 HI. Therefore, it is urged that this being matter relating to List III, the executive power of the Union does not extend to it and there-fore 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 Reorganisa-tion 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 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

1963 Art. 258( 1) to see whether it satisfies the definition -. of Jaw as contained in s. 2(d) of the Reorganisation Jayanti/al Amnt Act. Section 2(d) say> that law includes any enact-La/ Shodhan ment, ordinance, regulation, order, bye-law, rule, v. scheme, notification or other mstrument having, F.N. Rana · immediately before the appointed day, the force of law in the whole onn an)' part of the State of Bombay. Wanchoo J. 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 noti-fication 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 oflaw" 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 command which obliges person or persons to course of conduct. Being command, it must issue from determinate person or group of persons, with the threat of displeasure if the rule be not obeyed." This concept 1s 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 determinate person or group of persons. Salmond therefore broadened the concept of law and defined it as "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:-

"Law may shortly be described in terms of legal 1963 order tacitly or formally accepted by community, and it consists of the body of rules which that Jayanti/al Amrit community considers essential to its welfare and Lal Shodhan which it ·is willing to enforce by the creation v. of specific mechanism for securing compliance." F.N. Rana

It will be seen therefore whether law comes

Wanchoo J.

as command of sovereign body or as custom or usage having the force of law, the basic concept is that it should consist of 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. lt fellows therefore that if notification or order made by Government is to have the force of law, it must con-sist of rule or body of rules regulating the course of condm:t of person or persons living in the commu-nity 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 notifica-tion in order to be law must have the force of law. The expreRsion "force of law" must be distinguished from "the authority of law". Many orders issued by Government have the authority of law behind them but "11 of them cannot invariably be said to have the force of law, for in order that they may have the force of law they mu't satisfy the basic concept of law, i.e., they must contain rule or body of rules regulating the course of conduct of person or persons living in that community enforceable through courts or other machinery provided therefor. Thus if an order is issued under the authonty of law but it does not prescribe course of conduct regulating the action of 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 prescfibes no course of conduct for the

1963 community to obey. Such an order may have the -:--. authority of law behind it and in State governed Jayantzlal Amrzt by the rule of law it will usually be so. But "the Lal Shodhan authority of law" as we have said already must be v. di>tinguished from "the force of law" and every F.N. Rana order that has the authority of law behind it would not be one having the force 'of law, unless it complies Wanchoo J. 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 misconception in this argu-ment. An order having "the authority of law" behind it may be recognised by courts but unless it pre~cribes rule of conduct which person or persons living in the community must obey there is no question of its being enforced by court of law or other authority. The recognition of an order having the authority of law by courts or other authori-ties 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 court; or other authorities may even recognize orders of Government which h.tve 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 law and be enforceable by courts or other authori-ties 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 ba&ic 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 ins. 2(d) is enactment. An enact-ment 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 nece~sarily contain bod} 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

5 S.C.R.

the force of law. If an ordinance is passed, say 1963 under Art. 123 or Art. 213 of the Constitution, it --stands exactly on the same footing as an enactment Jayantilal Amrit and would necessarily have the force of law. If Lal Shodhan it is another kind of ordinance, it can have the force v. of law if it lays down binding rule . of conduct F.N. Rana and the body passing it has the authority of law to lay down such binding rule of conduct. Wanchoo J. Such an ordinance would usually be subordinate legislation. The third term is regulation. regula-tion may be direct comma11d 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 foun :l in the old regulations passed by the Governor-General before 1857 under his law-makmg power, some of which are still in force in this country. Secondly, regulations may be kind of subordinate legislation and in such case they are bound to consist of body of rules which regulate the conduct of persons living in the community and are enforce-able 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 rLay 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 Commo-dities Act, 1955. These orders lay down body of rules ~~ich . regulate the conduct of person or persons hvmg m the community and are enforce-able by cour::s or other authoritie>. The next term is bye-law. Bye-laws are well-known species of subordinate l1~gislation. They lay down general rules of conduct governing persons and are enforceable by courts or other authorities if passed by body having the a.uthority of law to do so. The next1963 term is Rule. Rules are again well-known species --of subordinate legislation laying down general rules subordinate legislation laying down general rules Jayanrilal Amrit of conduct and if they are passed conduct and if they are passed by body having Lal Shodhan Shodhan the authority to do so they are enforceable by courts or other authorities. The next term is scheme. F.N. Rana Schemes may be of two kinds. They may embody subordinate legislation containing body of rules Wanchoo J. binding on persons with whom they are concerned and in such case if passed by 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 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 species of subordinate legislation passed by 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 legisla-tion and contain 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 execu-tive in nature; for example, sale-deeds, mortgage deeds etc., are all instruments but have not the force of law. Similarly treaties between sovereign powers

, --of subordinate legislation laying down general rules subordinate legislation laying down general rules Jayanrilal Amrit of conduct and if they are passed conduct and if they are passed by body having Lal Shodhan Shodhan the authority to do so they are enforceable by courts

5 S.C.R.

are also instruments but they have by themselves

no force of law. That is why we find &pecific provis-. . ion in Art. 253 for legislation to give effect to inter.Jayantilal Am"t national agreements. Lal Shodha11

It 1s therefo:re clear that in order that notification

F.N. Rana

or order may have the force of law 1t has to contain rule or body of rules regulaLing the "onduct of person or persons living in the commumty; 1t has to be passea by body which has the necessary autho-rity for the purpose ana it is then that it will be en-forceable by courts or other authorities and will have the force of law. In ~hort, in order that notification or order may have the force of law it is not enough that courts may recognise it if necessity arises; it is further nece~.sary that the same should lay down rule or course of conduct which 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.

Wanchoo J.

In this connection an argument was advanced on behalf of the respondent that many statutes em-power 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 ha& the force of law. We do not think that that is the correct wa,y of looking at the matter. When the Government names the authority in such case, it is merely performing an executive function, though when the authority proceeds to frame rules it is making subordinate legi:.lation which will have the force of law for such rules will lay down course of conduct to be followed by person or persons living in the community the breach of which will be enforceable by courts or other authodties. In all such cases there are three stages; ll) conferment of power by the law on the government or its nominee to make rules, (2) nomination of the nominee by the govern-ment, 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 dearly l/SCl/64-22

Jayantila/ Amrit Lal Shodhan v.

F.N.Rana

WanchooJ.

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 the basis of these principles. The notifica-tion says that in exercise of the powers conferred by clause l l) of Art. 258 of the Constitution, the President hereby entrusts, with the consent of the State Govern-ment, 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 territo-rial jurisdiction of the said Commissioners subject to the same control by the Government of Bombay as is from time to time exercisable by that Govern-ment in relation to acquisition of land for the purpose of the State. In effect the notification app0ints the Commissioners of Divisions to exercise the functions of the Central Government under the Act for acquisi-tion 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 cert3in purposes to the Commis-sioners of Divisions. lt 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 notifica-tion 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 notification lays down 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 law within the meaning of "law" which we have already referred to. There

5S.C.R.

is nothing enforceable in this notification which is

-nothing more than an appointment of particular person to carry out certain duties which would other- Jayantilal Arnrlt wise be carried on under the Act by the Central Govern-Lal Shodhan ment. Such notification cannot in our opinion v. have the force of law even though it has the authority F.N. Rana of law behind it. It is that authority of law behind it which makes it recognisable by courts. Even Wanchoo J. so it cannot be said that the notifi~ation lays dcwn rule or body of rules regulating the conduct of person or persons living in the community, as such there is no question of its being enforceable as law by courts or other authorities and therefore it has not the force of law. The notification in our opinion i& merely an executive order with the authority of law behind it but 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 see no force in this argument. It is true, as we have already said, that courts will recognise this notifica-tion and an order passed by the Commiss10ner of 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

1963 the order has been made, No amendment to an -.-. enactment can be made except thro.ugh the legislative Jayantilal Amm process provided in the Constitution and Art. 258(1) I.al Shodhan does not provide for any legislative process for amend-v. ment of au enactment. It is true that the effect of F.N. Rana the notification in this case is that the Commissioner of Division can do what the Central Government Wanchoo J. 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 there-fore 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 law in force capable of adaptaition. 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 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, c01responded to Art. 239 of the Constitu-tion. In the present case we are concerned with an order under Art. 258{1) of the Constitution. The pro-vis10n correspondmg to Art. 258(1) is s. 1240) in the Government of India Act. That case, therefore is not direct authority for case like the present which deals with Art. 258(1) corresponding to s. 124{l) 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 offunctions,whether executive,

(1) [1955] l S.C.R. 735.

legislative or judicial. In the present case we are 1963 concerned with Art. 258(1 ), which as we have already -. -held deals wi1:h the executive functions of the Union Jayar11llal Amrll only and there is therefore no analogy between an Lal Shodhan order passed under Art. 258(1) of the Constitution v. and an order passed under s. 94 (3) of the Govern-F.N. Rana ment of India Act. On these considerations that WanchooJ. case is of no help to the respondents.

The next case to which reference may be made is Madhubhai Amathalal Gandhi v. the Union of Jndia<[1]). In that case this Court was dealing with notifi-cation under the Securities Contracts (Regulatio11) Act, No. 42 of 1956. There was however no dispute in that case on the question whether the notification wa~ law or not and it was accepted without question that the notification in dispute there was law. In these circum1.tances that case is of no help for the proposition that every notification under law would necessarily have the force of Jaw.

The next case is The Public Prosecutor V1. Jllur

ThippayyaC2>. That was case with respect to orders issued under the Essential Supplies (Temporary Powers) Act. No. 24 of 1946, and. the orders were held to hav<: the force of law. Those orders seem to have laid down 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 '5tate of Bombay v. F.N . Balsara<[3]>. That was clearly case of subordinate legislation inasmuch as the order there passed was in pursuance of >. 139 of the Bombay Prohibition Act, No. 25of1949, which gave power to the Govern-ment by general or special order to exempt any intoxi-cant 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) 1.L.R. [1949] Mad. 371. (3) [1951] S.C.R. 682.

Two other cases to which references may be

. . made are : (1) King-Emperor v. Abdul Hamid,([1]> Jayanttlal Amrzt and Ramendrachandra Ray v. Emperor. ([2]> In the Lal Shodhan first case the Superintendent of Police passed an order v. under s. 30 of the Police Act prohibiting processions F.N. Rana and the question waii whether it was law. The Patna Wanchoo J. 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 course of conduct to be followed by persons living within his police jurisdiction, disobedi-ence of which was punishable. It could therefore be enforced by courts and would have the force of law. The other case dealt with similar prohibitory order under the Calcutta Pohce 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(a> and Haji K. K. Moidu v. Food Ins-pectors 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 consi-deration 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. 258tl) contemplates only entrustment of execu-tive functions; as such the presumption is that any notification issued under that provision entrusting such functions to an officer m 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 appoint-ing certain officers to perform the functions of the

(1) [1923] 1.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.

5 S.C.R.

Cential Government in relation to the Act. It

cannot therefore have the force of law and is thus not law under s. 2(d) of the Reorganisation Act. Jayantilal Amrit It therefore does not continue under s. 87 of the Re-Lal Shodhan organisation Act. The Commissioner of Baroda there-v. fore would have no power to act under the notifica-F.N. Rana tion of July 24, 1959, after May 1, 1960, for the con-sent of the State of Gujarat was lacking to that noti-Wanchoo 1. fication. 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 notifica-tion i> however of July 12, 1961, and cannot cure the present notific"tions under ss. 4 and 6 of the Act as they are anterior in 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.