Jayantilal Amrit Lal Shodhan vs F.N. Rana and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 104 of 1963

Decision Date: 5 November 1963

Coram: J.C. Shah, P.B. Gajendragadkar, K.N. Wanchoo, Raghubar Dayal, Subba Rao

In the matter titled Jayantilal Amrit Lal Shodhan versus F.N. Rana and Others, the Supreme Court of India delivered its judgment on 5 November 1963. The bench that heard the case comprised Justices J.C. Shah, P.B. Gajendragadkar, K.N. Wanchoo, and Raghubar Dayal. The petitioner was Jayantilal Amrit Lal Shodhan and the respondents were F.N. Rana together with other parties. The judgment was reported in the 1964 All India Reporter at page 648 and also in the 1964 Supreme Court Reporter at page 294, with additional citations in later reports.

The factual background began with a notification issued by the President of India on 24 July 1959 under Article 258(1) of the Constitution. That notification authorised, with the consent of the Government of Bombay, the Commissioners of Divisions in the State of Bombay to exercise the functions of the Central Government under the Land Acquisition Act of 1894 in matters concerning acquisition of land for Union purposes. The Bombay Reorganisation Act of 1960 (Act 11 of 1960) subsequently created two new states, allocating the Baroda division to the State of Gujarat. Acting under the President’s notification, the Commissioner of the Baroda Division issued a declaration under Section 4(1) of the Land Acquisition Act, 1894, indicating that the petitioner’s land was required for a public purpose. The Commissioner also authorised the Special Land Acquisition Officer in Ahmedabad to perform the duties of the Collector as provided by the Act.

After the petitioner raised objections to the proposed acquisition, the Special Land Acquisition Officer submitted a report to the Commissioner, who then issued a declaration under Section 6(1) of the Act. Dissatisfied with this outcome, the petitioner approached the High Court of Gujarat under Articles 226 and 227 of the Constitution seeking a writ of certiorari. The High Court dismissed the petition. The petitioner’s contentions were twofold: first, that the President’s notification under Article 258(1) lost its effect after the territorial reorganisation because the newly formed State of Gujarat had not given its consent as required by Article 258(1); second, that the proceeding under Section 5A of the Act was quasi‑judicial and therefore the authority to make a report could not be delegated by the Commissioner, nor could the Commissioner consider such a report when it was made.

The Court, speaking through Justices Gajendragadkar, Shah, and Dayal, held that Article 258(1) of the Constitution empowers the President, by way of notification, to perform a function that the legislature could otherwise accomplish by law, namely, to entrust executive functions to officers named in the notification. Consequently, the President’s notification carries the force of law and operates as an amendment to the Act insofar as it substitutes the words of the notification for the corresponding provisions of the Act. The Court rejected the petitioner’s argument that the notification lacked legal effect after the reorganisation, emphasizing that the President’s power under Article 258(1) cannot be presumed to be without the force of law merely because it is exercised by the executive head of the Union. The Court also affirmed that the delegation of functions to the Special Land Acquisition Officer and the subsequent issuance of the declaration under the Land Acquisition Act were within the legal authority conferred by the President’s notification.

The Court observed that the notification issued by the President authorises officers named in that notification to perform functions that relate to matters within the executive power of the Union. By issuing such a notification, the President effectively amends the relevant statute, substituting the wording of the notification for the original statutory language. As noted on page 295, this interpretation means that the President’s notification possesses the force of law as defined in section 87 read with section 2(d) of the Bombay Reorganisation Act. The Court rejected the proposition that the President’s exercise of power under article 258(1) lacks legal force simply because the President is the Union’s executive head. The Court relied on the decision in Edward Mills Co. Ltd. v. State of Ajmer, [1955] 1 S.C.R. 735, and approved the earlier judgment in Chanabasappa Shivappa v. Gurppadappa Murigappa, I.L.R. 1958 Mysore 48.

Article 258(1) authorises the President to entrust to a State only those executive functions that are vested in the Union and may be exercised by the President on the Union’s behalf; it does not permit the President to delegate powers that are expressly vested in the President by the Constitution and therefore lie outside the scope of article 258(1). The executive power of the Union, the Court explained, extends to all matters for which Parliament has authority to legislate and to matters within the reach of parliamentary power. The phrase “save as expressly provided in the Constitution” in the proviso to article 73(1) cannot be given a narrow construction. A constitutional provision that allows the Union to exercise its power over matters also legislated on by a State legislature remains effective despite the limitation in that proviso. It is well settled that functions not strictly legislative or judicial belong to the residuary executive class.

The Court further held that the Constitution does not create a rigid separation of functions. While it is possible to categorize a State agency as executive, legislative or judicial, a specific function performed by an agency does not necessarily inherit the character of the agency itself. The Court referred to 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. Accordingly, the enquiry conducted by the Collector was not judicial or quasi‑judicial; the report prepared by the Collector under section 5A of the Land Acquisition Act was an administrative act. Consequently, the Commissioner, in appointing the Additional Land Acquisition Officer as Collector or in acting upon the Collector’s report in accordance with the functions assigned by the notification, acted within the authority conferred upon him. This reasoning was expressed by Subba Rao and Wanchoo, JJ., interpreting article 258(1) in the context of its overall scheme and language.

In interpreting Article 258(1) the Court explained that the provision permits the President merely to entrust the executive functions of the Union and no other type of function. Although the word “executive” does not appear beside the term “functions” in the article, the context requires that those functions be understood as having the same character as the Union’s executive power. The expression “entrust functions” together with the phrase “with the consent of” indicates that, by delegating his functions, the President is establishing an agency that is essentially tasked with carrying out the Union’s executive power. Consequently, Article 258(1) can be read to mean that the President may, with the consent of the appropriate authority, assign to a State Government or its officers tasks that fall within the scope of the Union’s executive power and not any other category of power. This interpretation limits not only the subject matter to those matters ordinarily placed in List I of the Seventh Schedule, but also restricts the nature of the delegated tasks to those that are executive in character. The Court noted that the decision in Amir Khan v. State, I.L.R. [1962] 2 All. 310, is therefore disapproved.

The Court then turned to the nature of the notification issued by the President under Article 258(1). It observed that the fundamental idea of law is that it comprises a body of rules which govern the conduct of individuals within a community and that the community enforces those rules through the necessary institutional machinery. Applying this principle, the Court held that the President’s notification does not possess the “force of law” as defined in sections 2(d) and 87 of the Bombay Reorganisation Act, 1960. Instead, the notification is an executive order that carries the “authority of law.” For an executive order to acquire the force of law, it must contain a rule or a set of rules that regulate the conduct of one or more persons and that can be enforced by a court of law, having been enacted by a body empowered to make such rules. The Court emphasized that “authority of law” must be distinguished from “force of law,” and that an order possessing merely the former does not acquire the latter unless it satisfies the basic concept of law.

The Court further explained that while courts may recognise an order that has the authority of law, such an order must prescribe a rule of conduct that a person or persons are obliged to follow; otherwise, the order cannot be enforced by any court or other authority. The Court rejected the proposition that the mere naming of the authority which will formulate the rules by the Government confers the force of law upon the Government’s order. In naming the authority, the Government is performing an executive function. Accordingly, the President’s notification under Article 258(1) is an executive order that courts must acknowledge, and any order issued by a Commissioner of a Division in accordance with that notification will have the same effect as an order of the Central Government. However, the Court clarified that such a notification does not amend the law to which the order relates, and therefore it is incorrect to assert that the definition of “appropriate” is altered by the President’s notification.

In this case the Court observed that the Government’s section 2(ee) of the Act had been amended as a consequence of the notification that was the subject of the dispute. The Court distinguished the decision in Edard Mills Co. Ltd. v. State of Ajmer reported in the 1955 (1) S.C.R. 735, and considered the authority in Madhubhai Amathalal Gandhi v. Union of India [(1961) 1 S.C.R. 191]. It held that the rulings in Public Prosecutor v. Illur Thippayya (I.L.R. [1949] Mad. 371), King Emperor v. Abdul Hamil [(1923) I.L.R. 11 Pat. 134] and Ramendrachandra Ray v. Emperor [(1931) I.L.R. XVIII Cal. 1303] were not applicable. The Court consulted the precedent in State of Bombay v. F.N. Balsara [(1951) S.C.R. 682] and noted it with a degree of consideration. It expressed doubt about the relevance of Chanabassapa Shivappa Tori v. Gurupadappa Murgeppa Hanji (I.L.R. [1958] Mys. 48) and Haji K.K. Modu v. Food Inspector Kozhikode (I.L.R. [1961] Kerala 639). The Court concluded that the notification in question could not be treated as law because it was not saved by section 87; consequently the Commissioner of the Baroda Division lacked any authority under the notification, as the State of Gujarat had not consented to it. Accordingly, the Commissioner’s notifications for acquiring the property were to be set aside.

The appeal, identified as Civil Appeal No. 104 of 1963, was filed against the judgment and order dated 14 September 1962 issued by the Gujarat High Court in Special Civil Application No. 145 of 1961. The parties were represented by counsel for the appellant and counsel for the respondents. The appeal was decided on 5 November 1963, and the judgment was delivered by the senior judge, with a dissenting opinion delivered by another judge. By a notification dated 1 September 1960 issued under section 4(1) of the Land Acquisition Act 1 of 1894, the Commissioner of the Baroda Division, acting under powers conferred by a presidential notification of 24 July 1959 issued under Article 258(1) of the Constitution, announced that a portion of Final Plot No. 686 in the Ellis Bridge Town Planning Scheme, owned by the appellant, was likely to be required for a public purpose, specifically the construction of a telephone exchange building in Ellis Bridge, Ahmedabad. Subsequently, the Additional Special Land Acquisition Officer of Ahmedabad, appointed by the Commissioner to perform the functions of a Collector, served a notice on the appellant under section 5A of the Act inviting objections to the proposed acquisition. The appellant lodged objections, after which the Additional Special Land Acquisition Officer submitted a report to the Commissioner. On the basis of that report, the Commissioner issued a further notification on 11 January 1961 under section 6(1) of the Act, declaring that the land identified in the earlier notice was required for the public purpose specified in column 4 of the schedule, confirming the appointment of the Additional Special Land Acquisition Officer under clause (e) of section 3 to act as Collector for all proceedings concerning the land, and ordering acquisition under section 7 of the Act. Following these steps, the appellant approached the Gujarat High Court for relief.

The appellant filed a petition under Articles 226 and 227 of the Constitution seeking a writ of mandamus or any other appropriate writ that would set aside the notifications dated 1 September 1960 and 11 January 1961, together with the proceedings initiated under section 5A of the Land Acquisition Act, 1894, concerning the appellant’s land and the decision taken by the Commissioner of the Baroda Division. The same petition also asked for a writ that would set aside a further notification dated 19 January 1961 issued under section 6(1) of the same Act, and it included a request for interim relief. The High Court dismissed the petition. The High Court, however, issued a certificate of fitness under Articles 132(1) and 133(1)(c) of the Constitution, thereby enabling the appellant to bring the present appeal before this Court.

In the present appeal, counsel for the appellant advanced two principal contentions. First, it was contended that the Commissioner, at the material point in time, possessed no authority to issue the notifications under sections 4 and 6 of the Land Acquisition Act, 1894, because those notifications were purportedly issued on the basis of a presidential order dated 24 July 1959 made under Article 258(1) of the Constitution. That presidential order had delegated to the Commissioners of Divisions in the former State of Bombay the functions of the Union Government relating to land acquisition. The appellant argued that after the State of Bombay ceased to exist and the State of Gujarat was created, the delegated functions could not continue without the express consent of the Government of Gujarat, which had not been obtained. Consequently, any action taken by the Commissioner on that basis was beyond his jurisdiction. The second contention asserted that the procedure prescribed under section 5A of the Land Acquisition Act is quasi‑judicial in nature, and therefore the power to prepare the required report under that section could not be lawfully delegated by the Commissioner to another officer. Accordingly, the report prepared by the Additional Special Land Acquisition Officer could not be considered by the Commissioner when making the final decision.

The judgment proceeds to outline the statutory framework governing the matters in dispute, situating it within the relevant constitutional scheme. The Constitution, as amended by the Seventh Constitutional Amendment Act of 1956, places legislative authority over the acquisition and requisition of land in entry 42 of the Concurrent List, thereby allowing both the Union Parliament and the State Legislatures to legislate in this field. Notwithstanding this distribution of power, Article 372 of the Constitution ensures that the Land Acquisition Act, 1894, which governs compulsory acquisition of land for public purposes, remains in force. Under section 4(1) of that Act, the “appropriate Government” is empowered to publish a preliminary notification indicating that land in a particular locality is likely to be required for a public purpose. Once such a notification is published, officers who are either generally or specially authorised by the appropriate Government acquire the authority to enter the land, conduct surveys, and carry out any necessary acts to determine whether the land is suitable for the intended purpose. These authorized officers may also mark boundaries, cut trenches, and perform other related actions. The term “appropriate Government” is defined by clause (e) of section 3 of the Act, with the definition varying depending on whether the acquisition is for Union purposes or for purposes of the State.

The Court observed that, according to the Land Acquisition Act, the Central Government possessed the authority to acquire land when the acquisition served the purposes of the Union, whereas any acquisition undertaken for purposes other than those of the Union fell within the jurisdiction of the State Government. The Court explained that any person who had an interest in land that had been notified under section 4(1) of the Act was entitled to lodge a written objection to the proposed acquisition within thirty days from the date of issuance of the notification. Upon receipt of such an objection, the Collector was required to provide the objector with a reasonable opportunity to be heard. After hearing the objection, the Collector could, if he deemed it necessary, conduct further inquiries and then forward the matter to the appropriate Government together with a report that set out his recommendations concerning the objections raised. The Court stated that the decision of the appropriate Government on the Collector’s report became final under sub‑section (2) of section 5A. The Court further clarified that the term “Collector” was defined by section 3(c) to mean the Collector of the district and also to include a Deputy Commissioner or any other officer specially appointed by the appropriate Government to discharge the functions of a Collector under the Act. Under section 6, the appropriate Government was empowered to issue a declaration that particular land was required for a public purpose, provided that the Government, after reviewing the report filed under section 5A sub‑section (2), was satisfied that the land was indeed needed. The Court noted that, according to sub‑section (3) of section 6, such a declaration constituted conclusive evidence that the land was required for a public purpose or, where applicable, for a company. The Court then described the procedure under section 7, whereby the appropriate Government or an officer appointed by it could direct the Collector to take orders for the acquisition of the land that had been declared necessary. Following such a direction, the Collector was required to issue a public notice informing all interested parties that the Government intended to take possession of the land and that any claims for compensation relating to interests in that land should be presented to him. The Collector would thereafter hold an inquiry to determine the nature of the claimant’s interest, to consider any objections to the measurement of the land to be acquired, and to make an award specifying the exact area of the land, the amount of compensation that in his opinion should be payable, and the way in which that compensation should be apportioned among all persons known or believed to have an interest in the land, as provided for in sections 9 and 11. The Court concluded from this concise summary that, where land was being acquired for the purposes of the Central Government, the notifications required under sections 4 and 6 could be issued by the Central Government, inquiries could be conducted under sections 5A and 9, and compensation could be awarded by an officer designated as the Collector, who in cases involving acquisition for Union purposes would ordinarily be an officer specially appointed for that role by the Central Government. Finally, the Court noted that, exercising the powers granted by article 258 of the Constitution, the President of India, on 24 July 1959, issued a notification that, with the consent of the State Government of Bombay, entrusted the Commissioners of Divisions in the State of Bombay with the functions of the Central Government under the Land Acquisition Act in relation to acquisitions intended for Union purposes within the territorial jurisdiction of those Commissioners, while retaining the same oversight by the Bombay Government as was ordinarily exercised for State‑level acquisitions.

In the notification dated 24 July 1959, the President of India, exercising the power conferred by Article 258 of the Constitution, assigned to the Commissioners of Divisions in the State of Bombay certain functions of the Central Government that were prescribed under the Land Acquisition Act of 1894 for the purpose of acquiring land on behalf of the Union within the territorial limits of those Commissioners. The notification expressly stated that this entrustment was subject to the same control exercised by the Government of Bombay as it was from time to time in relation to land acquisition for State purposes. At the time the notification was issued, the area in which the disputed land was situated formed part of the State of Bombay. However, on 1 May 1960, referred to as the appointed day, the Bombay Reorganisation Act, 1960 came into force and reorganised the State of Bombay into two new States – Maharashtra and Gujarat – with the Baroda Division being allotted to the newly created State of Gujarat. To facilitate a smooth bifurcation, the Act incorporated provisions concerning the continuance of officers in the same posts they occupied before the appointed day and the preservation of the territorial extent of existing laws. Section 82 of the Bombay Reorganisation Act provided that any person who, immediately before the appointed day, was holding or discharging the duties of any post or office connected with the affairs of the State of Bombay in an area that, on that day, fell within Maharashtra or Gujarat, would, subject to an order by a competent authority, continue to hold the same post or office in the respective new State and would be deemed, from that day, to have been duly appointed to the post by the Government or other appropriate authority of that State. Section 87 made it clear that the territorial references in any law in force immediately before the appointed day, which referred to the State of Bombay, would, until altered by a competent legislature or authority, continue to be interpreted as referring to the territories that constituted the State of Bombay immediately before the appointed day, thereby ensuring that the enactments, ordinances, regulations, orders, bye‑laws, rules, schemes, notifications or other instruments having the force of law at that time would retain their applicability in the newly formed States. Furthermore, Section 2(d) of the same Act defined the term “law” to encompass any such enactment, ordinance, regulation, order, bye‑law, rule, scheme, notification or other instrument that possessed the force of law immediately before the appointed day in any part of the State of Bombay. The 1959 presidential notification, made under Article 258(1), therefore entrusted the specified functions under the Land Acquisition Act to the Commissioners of Divisions in the State of Bombay and recited that the consent of the State Government of Bombay had been obtained for that entrustment.

The Court noted that the parties agreed that, prior to the issuance of the presidential notification by the Commissioner of the Baroda Division—who at that time acted as an officer of the State of Gujarat—no order under section 4 of the Land Acquisition Act had been made by the President expressly entrusting any officer in the State of Gujarat with the functions of the Union Government under the same Act. Consequently, the authority claimed by the Commissioner to issue a notification for acquiring the land of the appellant was said to arise solely from sections 82 and 87 of the Bombay Reorganisation Act. The appellant argued that the power exercised by the President was of an executive character, and that any functions that could be entrusted to a State Government or to an officer of that State under Article 258(1) of the Constitution were likewise executive. According to the appellant, such an entrustment of executive authority did not constitute a “law” within the meaning of section 87 of the Bombay Reorganisation Act. Hence, the Commissioners of the newly formed State of Gujarat after 1 May 1960, acting on the basis of the presidential notification, were claimed to be incompetent to exercise the Union Government’s functions under the Land Acquisition Act. To support this contention, the appellant relied on the structural division of Part XI of the Constitution, which separates Chapter 1 (Articles 245 to 255) dealing with the distribution of legislative powers from Chapter 11 (Articles 256 to 261) dealing with “administrative relations between the States.” It was submitted that because Article 258 appears in Chapter 11, it must be regarded as dealing with administrative or executive matters rather than legislative ones. Building on the title of Chapter 11 and the nature of the preceding Articles 256 and 257—both of which address the exercise of the State’s executive power to ensure compliance with Parliament’s laws and to avoid impeding the Union’s executive power—the appellant claimed that Article 258 concerns the entrustment of executive functions and that a presidential notification conferring such executive functions could not be equated with a law for the purposes of section 87 of the Bombay Reorganisation Act. The Court, however, observed that the argument based solely on the placement of Article 258 in Chapter 11 and the character of the two preceding Articles was not decisive, because clause (2) of Article 258 and clause (3) of Article 261, also situated in Chapter 11, address legislative and judicial matters respectively. At this point, the Court reproduced the text of Article 258 for clarity: “(1) Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to”.

Article 258 of the Constitution states that the President, notwithstanding any other provision, may, with the consent of a State government, entrust that government or its officers with functions relating to any matter to which the executive power of the Union extends. The second clause provides that a law made by Parliament and applicable in a State may, even if the subject matter is one over which the State legislature lacks authority, confer powers, impose duties, or authorize the conferring of powers and the imposition of duties upon that State or upon officers and authorities of the State. The third clause stipulates that when, by virtue of this article, powers and duties have been conferred or imposed upon a State or its officers or authorities, the Government of India shall pay to the State a sum that the parties may agree upon; if they fail to reach an agreement, the sum shall be determined by an arbitrator appointed by the Chief Justice of India to compensate the State for any extra administrative costs incurred in connection with the exercise of those powers and duties.

By interpreting the first clause, the Court observed that the President is empowered to delegate, with the State’s consent, any function that falls within the Union’s executive power to the State government or its officers. The second clause was understood to relate to Parliament’s legislative authority to enact measures, even in areas exclusively within Union competence, that confer powers or impose duties on a State or its officials. The third clause was seen as a mechanism for the Union to reimburse the State for the additional financial burden that arises from performing the duties or exercising the powers granted under Article 258.

The High Court had previously held that the delegation of functions under Article 258(1) did not constitute an exercise of the Union’s executive power. It reasoned that functions which are neither judicial nor legislative need not automatically be classified as executive, and that functions outside the three recognized categories—legislative, judicial and executive—could be treated as miscellaneous. However, the Supreme Court noted that it is now well settled that any function which does not fall strictly within the legislative or judicial spheres belongs to the residuary class and must therefore be regarded as an executive function.

Authoritative legal texts were cited to support this view. Halsbury’s Laws of England, third edition, volume 7, article 409, page 192, explains that executive functions cannot be comprehensively defined because they consist of the residue of governmental functions after the legislative and judicial functions have been removed. It further lists, in addition to the execution of laws, activities such as maintaining public order, managing Crown property and nationalised industries, directing foreign policy, conducting military operations, and providing or supervising services like education, public health, transport, and state assistance and insurance. Likewise, Wade and Phillips, Constitutional Law, sixth edition, page 16, observes that it is customary to divide governmental functions into three classes: legislative, executive (or administrative), and judicial.

These principles were subsequently applied in the case of Rai Sahib Ram Jawaya Kapur v. The State of Punjab, where the Court examined whether the activities of publishing, printing and selling textbooks for students constituted an executive function of the State. The Court reaffirmed that while an exhaustive definition of executive function may be elusive, it is generally understood as the residual category of governmental activity after legislative and judicial functions have been accounted for.

In the case of State of Punjab, the Court examined whether the activities of publishing, printing and selling textbooks for the use of students could be classified as an executive function of the State. The reference to the earlier decision reported in the 1955 volume of the Supreme Court Reports at page 225 (citation 1/SCI/64‑20) was noted. The Chief Justice, Mukherjea, speaking for the Court, observed that it might be impossible to formulate a complete definition of what an executive function entails. He explained that, as a general rule, the term “executive power” refers to the residual governmental functions that remain after the legislative and judicial functions have been removed. However, the Court cautioned that it should not be assumed that legislative duties are performed solely by the Legislature, executive duties solely by the executive, and judicial duties solely by the judiciary. The Constitution does not establish an absolute or rigid separation of functions among the three branches of government. Frequently, the executive is entrusted with the performance of functions that are legislative or judicial in nature. For example, the power to make rules, regulations and notifications, which are essentially legislative, is often delegated to the executive. Likewise, legislation sometimes confers judicial authority upon the executive, as illustrated by the case of Harinagar Sugar Mills Ltd. v. Shyamsundar (1) [1962] 2 S.C.R. 339. In exercising its executive responsibilities, public authorities issue orders that are not far removed from legislation and make decisions that affect individuals’ personal and property rights, which are quasi‑judicial in character. In addition to these quasi‑legislative and quasi‑judicial functions, statutes have also empowered the executive to carry out functions that are legislative and judicial in nature, and in some situations the powers exercised combine elements of legislative, executive and judicial characteristics simultaneously. The Court noted that because modern governments confront complex problems and an overwhelming volume of parliamentary business, it becomes necessary for the executive to often exercise powers of subordinate legislation, as explained in Halsbury’s Laws of England, volume 7, article 409. While it is possible to precisely characterize an agency of the State as executive, legislative or judicial, it cannot be presumed that every function performed by a particular agency must necessarily correspond to the character of that agency. The Court further observed that a detailed discussion of this broader principle was unnecessary for the present case. The issue at hand did not require a determination of whether, under Article 258(1), a Presidential notification may entrust only executive functions of the Central Government to a State or to a State officer. The specific notification under consideration had assigned “the functions of the Central Government under the Land Acquisition Act of 1894, in relation to acquisition of land for the purpose of the Union” to the Commissioners of Divisions. The Court pointed out that the power granted to the appropriate Government under section 55 of the Land Acquisition Act to make rules under that Act had not been delegated to the Commissioner. Whether such a rule‑making function could be delegated was not a matter for examination in this case. The Court also noted that an argument presented at the Bar was based on an incorrect premise concerning the scope of the matter.

In this case the Court noted that the field in which Article 258(1) operates must be examined. That provision enables the President, as head of the Union, to entrust to a State the functions that are vested in the Union and that the President exercises on the Union’s behalf; however, the provision does not empower the President to delegate to any other person or body the powers and functions that the Constitution expressly invests in him as President. The Court explained that certain powers, such as the authority to promulgate Ordinances under Article 123, the power to suspend the provisions of Articles 268 to 279 during an emergency, the power to declare a failure of constitutional machinery in a State under Article 356, the power to declare a financial emergency under Article 360, and the power to make rules governing recruitment and conditions of service for persons appointed to posts and services connected with the affairs of the Union under Article 309, are not powers of the Union Government. These powers are vested directly in the President by the Constitution and, therefore, cannot be delegated or entrusted to any other body or authority under Article 258(1). The Court rejected the argument that the very nature of these powers implies that they could not be entrusted to a State or a State officer and that consequently Article 258(1) should be given a limited meaning. It held that the limitation arises because those powers are not Union powers at all, not because of any special character they possess. The Court further listed a wide range of other powers exercisable by the President, mentioning, for example, the appointment of judges under Articles 124 and 217, the appointment of committees under the Official Languages Act under Article 344, the appointment of commissions to investigate conditions of backward classes under Article 340, the appointment of a special officer for scheduled castes and tribes under Article 338, the power to terminate employment at his pleasure under Article 310, and the power to, in the interest of state security, deny a public servant who is sought to be dismissed the opportunity contemplated by Article 311(2). All of these are executive powers of the President and may not be delegated or entrusted to another body or officer because they fall outside Article 258. The Court then turned to the principal question of whether the President’s notification constitutes law within the meaning of section 87 read with section 2(d) of the Bombay Reorganisation Act, 1960. To address that question, the Court said it was necessary first to analyse carefully the three stages of the constitutional process that lead to the ultimate exercise of a function of the Union Government by a State or a State officer to whom the function has been entrusted. The three stages are: (i) the conferring of power upon the President as the head of the Union to exercise the Union’s functions; (ii) the entrustment of the function by the President to the State Government or an officer of that Government; and (iii) the exercise of the function by the State or its officer on behalf of the Union.

The Court explained that the function was to be performed by the State or its officer on behalf of the Union. It noted that Article 258(1) authorised the President, as head of the Union, to entrust any function relating to a matter within the Union’s executive power to a State Government or to an officer of that Government. The Court stressed that such functions remained functions of the Union and were not personal functions of the President. It observed that the power conferred upon the President by the Constitution carried the force of law. Nevertheless, the parties disputed the precise nature of the President’s entrustment of functions. The Court held that the character of the exercised function depended on the field in which it operated and on its effect on the rights of citizens. Accordingly, the President could delegate any function that the Union Government possessed, provided the function related to a matter within the Union’s executive power. By reference to Article 367, the Court affirmed that the General Clauses Act of 1897 applied to constitutional interpretation, and that section 8 defined “Central Government” in clause (b) to mean the President for any act done after the Constitution commenced, and also to include a State Government when it exercised functions entrusted under clause (1) of Article 258 within the scope of the authority granted by that clause. The Court then turned to Article 53, which vested the Union’s executive power in the President, allowing him to exercise it directly or through subordinate officers in accordance with the Constitution. Article 73, subject to constitutional provisions, extended the Union’s executive power (a) to matters in which Parliament could legislate and (b) to the exercise of rights, authority and jurisdiction that the Government of India could exercise under any treaty or agreement, on the condition that the executive power in sub‑clause (a) would not, unless expressly provided in the Constitution or by a law of Parliament, extend in any State to matters over which the State Legislature also had legislative competence. The Court observed that, at first glance, the Union’s executive power covered all matters within Parliament’s legislative competence and any area where Parliament’s power extended. The parties contended that the phrase “save as expressly provided in the Constitution” meant that unless the Constitution itself expressly allowed the Union’s executive power, within the sense of the proviso to Article 73(1), to extend to a matter also legislated by a State, that provision could not override the proviso.

In this case the Court observed that the phrase “save as expressly provided in the Constitution” cannot be given a narrow construction. A constitutional provision that gives the Union authority to act in matters where a State legislature also has competence operates despite the limitation expressed in the proviso to Article 73(1). The Court pointed to Article 298, which among other things extends the Union’s power to the acquisition of property, as an example of such a provision. No constitutional article was identified that would create an enactment of the sort suggested by the appellant’s counsel, namely one that would exclude the operation of the proviso to Article 73(1). The Court further noted that Articles 353, 360(3), 339(2), 256 and 257, which were relied upon by the appellant, merely provide for the Constitution to give directions to State governments on certain specified matters or purposes. The language of those articles does not expressly state that the proviso to Article 73(1) will not apply. Instead, the wording supports the view that the Constitution confers on the Union the power to do certain things that fall within the scope of executive power, even though, under ordinary circumstances, the power over that subject matter may be exercised by a State legislature because of the corresponding legislative entry. Consequently, the Court held that it is permissible for the President, subject to the proviso of clause (1) of Article 73 and with the consent of the State government, to entrust the Union’s executive power relating to the acquisition of land to either the State itself or to officers of the State.

The appeal, however, did not require the Court to determine whether the delegation of powers to the State or its officers carries the force of law. The matter before the Court was the nature of the power exercised by the President under Article 258(1) when he entrusts functions to a State or its officers. The Court affirmed that the President is indisputably the executive head of the Union, but this fact alone does not mean that the President’s exercise of power under Article 258(1) cannot have the effect of law within the meaning of section 87 of the Bombay Reorganisation Act. By a notification dated 24 July 1959, the President vested authority in the Commissioner of the Baroda Division concerning matters of land acquisition under the Land Acquisition Act, 1894. Item 42 of List III places the subject of acquisition of property in the Concurrent List, granting the Union Parliament the power to legislate on acquisition of property for Union purposes. Accordingly, under Article 73(1)(a) the Union’s executive power extends to the acquisition of property for the Union. Moreover, Article 298 of the Constitution extends the Union’s executive power to the carrying on of any trade or business, to the acquisition, holding and disposal of property, and to the making of contracts. These provisions together support the conclusion that the President, by the said notification, could lawfully entrust the specified acquisition functions to the State officer, within the limits prescribed by the Constitution.

In this case the Court explained that the phrase “acquisition, holding and disposal of property” must be understood to cover compulsory acquisition of property. The Constitution, by virtue of the proviso to article 73(1), expressly authorises Parliament to acquire property for the Union; consequently the executive power of the Union to effect compulsory acquisition of property is preserved notwithstanding any power of the State to acquire land. The effect of article 258(1) is merely to provide a broad mechanism whereby the President, by way of a notification, can exercise a power that the legislature could have exercised through legislation, and can assign the performance of specified functions to officers as the President may designate, subject to the conditions laid down in the notification. By delegating powers under the statute, such a notification simply authorises the State or an officer of the State, in the circumstances and within the prescribed limits, to carry out the specified functions. The practical result of the presidential notification is that wherever the expression “appropriate Government” appears in the Land Acquisition Act in relation to provisions for acquisition of land for Union purposes, it is deemed to be replaced by the words “appropriate Government or the Commissioner of the Division having territorial jurisdiction over the area in which the land is situated”. In effect, the issuance of the presidential notification means that the Land Acquisition Act is to be considered partially amended, and it would be difficult to regard such an amendment as lacking the force of law. The Court referred to its earlier decision in The Edward Mills Company Ltd. v. The State of Ajmer, where it held that an order made under section 94(3) of the Government of India Act 1935, despite the repeal of that Act by article 395 of the Constitution, remained “law in force”. Section 94(3) of the 1935 Act provided that a Chief Commissioner’s Province was to be administered by the Governor‑General, acting through a Chief Commissioner appointed at his discretion. On 16 March 1949 the Central Government issued a notification exercising its power under section 94(3) directing that the functions of the appropriate Government under the Minimum Wages Act 1948, in respect of every Chief Commissioner’s Province, would be performed by the Chief Commissioner. After the Constitution came into force, the Chief Commissioner of Ajmer, purporting to act as the appropriate Government, published a notification under section 27 indicating his intention to add “employment in the textile mills” as an additional item in Part 1 of the Schedule, and subsequently issued a final notification inserting “employment in textile industry” into Part 1 of the Schedule. The validity of the orders of the Chief

In the present case, the order issued by the Chief Commissioner was challenged on several grounds, the principal one being that the order of the Governor‑General made under section 94(3) of the Government of India Act, 1935, did not constitute “law in force” within the meaning of Article 372 of the Constitution. It was contended that, after the Constitution came into force, the President had to delegate fresh authority under Article 239 before the Chief Commissioner of Ajmer could act as the appropriate Government for purposes of the Minimum Wages Act. Consequently, it was argued that every step taken by the Chief Commissioner pursuant to that Act, including the final notification fixing the minimum rates of wages for employment in the textile mills of Ajmer, was illegal and ultra vires. The issue that thus required determination, as earlier considered in the Edward Mills case (1) [1955] 1 S.C.R. 735, was whether the Central Government’s order under section 94(3) of the 1935 Act could be treated as “law in force” for the purposes of Article 372. The contention was raised that although an order may fall within the definition of “existing law,” it could not be included in the expression “law in force” under Article 372. Mukherjea J., speaking for the Court in that earlier decision, observed that there was no distinction between the expression “existing law” used in Article 366(1) and the expression “law in force” appearing in Article 372. He held that the phrase “law in force” in Article 372 was sufficiently wide to encompass not only statutes but also regulations or orders that possessed the force of law. According to the Court, an order made by the Governor‑General under section 94(3) that invested the Chief Commissioner with authority to administer a province was in substance a legislative provision defining the rights and powers of the Chief Commissioner with respect to that province, and therefore fell within the ambit of Article 372. Such an order, being “law in force” immediately before the Constitution’s commencement, continued to remain effective under clause (1) of that Article. In the present opinion, the Court found that the earlier Edward Mills case strongly supported the conclusion that the notification issued by the President conferring authority on the Commissioner to exercise the powers of the appropriate Government in relation to land acquisition under the Land Acquisition Act possessed the force of law, even though it was issued by an executive authority. The Court perceived no principled difference between the Governor‑General’s notification in the Edward Mills case and the present notification. The Court cautioned, however, that not every executive order carried the force of law; an order that was purely administrative or issued without any statutory authority would not attain that status. Where a general order issued by an executive authority conferred powers exercisable under a statute and thereby effectively modified or added to that statute, such a conferment of powers had to be regarded as having the force of law.

It was observed that an order issued without any statutory authority may not acquire the status of law. However, when an executive authority issues a general order that confers a power which is exercisable under an existing statute and, by its substance, modifies or adds to that statute, the conferral of such powers must be treated as having the force of law. The Court illustrated this principle by referring to the decision in Chanabasappa Shivappa v. Gurupadappa Murigappa, reported in I.L.R. (1958) Mysore 48. That case was decided by the Mysore High Court under section 119 of the States Reorganisation Act, 1956, a provision that is substantially the same as section 87 of the Bombay Reorganisation Act, 1960. Moreover, the definition of “law” in section 2(h) of the States Reorganisation Act is identical to the definition in section 2(d) of the Bombay Reorganisation Act. In that context, a notification issued by the Government of Bombay that conferred powers to try election petitions under the Bombay District Municipal Act, 1901, after the reorganisation of the State of Bombay, was held to be properly upheld. The Court emphasized that the validity of that notification rested on the same principle that a general executive order, if it creates or alters a statutory power, acquires the character of law.

The second issue raised required only a brief discussion. Section 5A of the Land Acquisition Act provides that the power to hear objections must be exercised by the Collector as defined in section 2(c) of the Act. Accordingly, the authority to hear objections lies not with the appropriate Government itself but with the Collector. The Act defines “Collector” to mean either the Collector of a district or any officer specially appointed by the appropriate Government to perform the Collector’s functions under the Act. The statute itself authorises the appropriate Government to appoint a Collector for the purposes of the Act. Pursuant to the powers conferred on the Commissioner by article 258(1) of the Constitution, the Commissioner appointed the Additional Special Land Acquisition Officer, Ahmedabad, to act as Collector for the purposes of section 5A. In making this appointment, the Commissioner exercised the power that the statute vests in the appropriate Government. The Court noted that the appellant had not placed any material before it to support the earlier, somewhat tentative, claim that the Collector’s proceedings were irregular or illegal. The Collector conducted an inquiry as required by section 5A, prepared a report, and submitted it to the Commissioner who, acting as the appropriate Government, issued the notification under section 6 of the Land Acquisition Act based on that report. Section 5A(2) mandates that every objection to the acquisition of the notified land, or any land in the vicinity, must be made in writing to the Collector. The Collector is required to give the objector an opportunity to be heard, either in person or through a pleader, and after considering all objections—and any further inquiry the Collector deems necessary—to prepare a report containing his recommendations on the objections.

The Court held that a report prepared under section 5A of the Land Acquisition Act is not a condition precedent to the issuance of the notification authorized by section 6. It observed that, under the emergency provision contained in section 17, the appropriate Government may take possession of land free from all encumbrances and, by virtue of sub‑section (4) of that section, may direct that where, in its opinion, the land falls within the scope of sub‑section (1) or sub‑section (2), the provisions of section 5A shall not apply. The Court further explained that the Collector is not required to reach a final decision on acquisition; rather, the Collector must forward the whole case to the appropriate Government together with a complete record of the proceedings he conducted and a report setting out his recommendations on the objections received. Prima facie, the Court said, such a report is an administrative document upon which the Government relies when exercising its power under section 6 to decide whether to issue a notification for acquisition.

The Court described the determination that any particular parcel of land is needed for a public purpose as an administrative decision. Consequently, the Act mandates that certain inquiries be made solely for the purpose of reaching that administrative conclusion. While the Collector is required to follow the procedural safeguards prescribed by the statute and to afford the objector an opportunity to be heard either in person or through a pleader, the Court emphasized that section 5A expressly authorises the Collector to conduct an independent inquiry apart from the enquiry on the objections themselves. In the circumstances, the Court concluded that such an inquiry cannot be characterised as a judicial or quasi‑judicial inquiry. It noted that there was no delegation of any judicial power to the Central Government in the present case, because the power to hold an inquiry is statutorily vested in the Collector, and the Collector had duly exercised that statutory power.

The Court observed that the Commissioner, acting under the authority conferred upon him, merely appointed the Additional Land Acquisition Officer as the Collector on behalf of the Central Government and then considered the Collector’s report in accordance with the functions assigned by the President’s notification. In doing so, the Commissioner did not act inconsistently with the authority that had been lawfully conferred upon him, nor could he have acted beyond that authority. The Court rejected the second objection raised by the appellant, holding that it likewise fails. Accordingly, the Court dismissed the appeal and ordered it to be dismissed with costs.

Justice Wanchoo, however, expressed a dissenting view, stating that he was unable to agree with the majority. He noted that the appeal arose from a certificate granted by the Gujarat High Court. The appellant was identified as the owner in possession of Final Plot No. 686 of the Ellis Bridge Town Planning Scheme No. 3 in Ahmedabad, measuring 7,018 square yards. The Court recounted that on 1 September 1960 a notification under section 4 of the Land Acquisition Act, No. 1 of 1894, was issued by the Commissioner of Baroda, who was exercising powers conferred by an order of the President pursuant to article 258(1) of the Constitution. By that notification, the Commissioner declared that 3,200 square yards of the appellant’s plot were required.

In this case, the Commissioner, after issuing the earlier notification, appointed the Additional Special Land Acquisition Officer, Ahmedabad, to act as Collector under section 5A of the Act. Subsequently, following the procedures required by section 5A, the Commissioner issued a notification under section 6 on 12 January 1961, after reviewing the Collector’s report prepared under the previous section 4 notification. That 6‑section notification stated that a total of 3,387 square yards of the land in plot No 686 would be required for the telephone exchange building. On 22 February 1961, the appellant filed a writ petition, which later gave rise to the present appeal, challenging the section 6 notification on three principal grounds. First, the appellant argued that the notification dated 24 July 1959, issued under article 258(1) of the Constitution, could not give powers to the Commissioner because it preceded the creation of Gujarat on 1 May 1960. The appellant further contended that officers of the new state could exercise such powers only with the consent of the Gujarat Government, which was absent. Second, the appellant maintained that even if the 1959 notification remained effective after Gujarat’s formation, the Commissioner could not appoint the Additional Special Land Acquisition Officer as Collector for purposes of section 5A, because that would amount to an unlawful delegation of the Commissioner’s delegated authority. He argued that such appointment would constitute an unlawful delegation of the Commissioner’s delegated authority. Third, the appellant submitted that the proceedings under section 5A are quasi‑judicial in nature, and therefore the Commissioner could not delegate those functions to any other officer. The Union of India opposed the petition. In response, it argued that the 1959 notification under article 258 possessed the force of law. It further contended that sections 82 and 87 of the Bombay Reorganisation Act 1960 (No XI of 1960) gave the notification continued full effect, authorising the Commissioner to act under the functions assigned to him. The Union also maintained that the Commissioner had authority, by virtue of the article 258(1) notification, to appoint a Collector as defined in section 3(c) of the Act, and that such appointment did not involve any sub‑delegation of delegated authority. Finally, it asserted that the functions under section 5A are administrative rather than quasi‑judicial. It further argued that even if those functions were considered quasi‑judicial, they are vested in the Collector or any officer specially appointed by the appropriate government to perform the Collector’s duties, which the Commissioner had done.

In this case the Court observed that the Commissioner had appointed an officer specially designated by the appropriate government to perform the functions of a Collector under the Act, and that such appointment was precisely the action taken by the Commissioner. The High Court, however, had dismissed the petition by holding that the notification dated 24 July 1959, issued under Article 258(1) of the Constitution, possessed the force of law and therefore was saved by section 87 of the Bombay Reorganisation Act. By reading section 87 together with section 82 of the same Act, the High Court concluded that the Commissioner retained the power to continue the functions assigned to him by the 24 July 1959 notification. The High Court further held that, by virtue of that notification, the Commissioner was authorized to appoint any officer specially to perform the duties assigned to the Collector under the Act, and consequently the officer so appointed could legitimately carry out the Collector’s duties. Finally, the High Court ruled that proceedings under section 5‑A of the Act were administrative in nature, and therefore there was no question of delegating any quasi‑judicial functions either through the 24 July 1959 notification or through the Commissioner’s order appointing a specially designated officer to act as Collector. After the High Court’s decision, the appellant applied for a certificate, which was granted, bringing the matter before this Court. The principal issue for consideration is the nature of the notification dated 24 July 1959 made under Article 258(1) of the Constitution. The appellant contends that Article 258(1) deals solely with the entrustment of executive functions by the President to a State Government or to its officers, with the President’s consent, and does not extend to the entrustment of any other presidential functions, whether legislative or quasi‑judicial. Accordingly, any notification issued under Article 258(1) can only be an executive act of the President and cannot acquire the force of law. The appellant further argues that even if the limited scope of Article 258(1) to executive functions does not alone determine whether a particular order is an executive act, the specific order in this case must be regarded as executive in character and therefore cannot be a law having the force of law. As a result, section 87 of the Reorganisation Act should not apply to this order, and the order would not be saved as a law or a notification possessing legal force under that section. Lastly, the appellant submits that section 82 by itself is insufficient to preserve the power conferred on the Commissioner by the 24 July 1959 notification, because section 82 provides that all persons, before the appointed day, who held or performed the duties of any post or office connected with the affairs of the State of Bombay in any area that on that day fell within the State of

In this case, the Court observed that Section 82 of the Reorganisation Act provides that persons who, on the appointed day, were holding or discharging duties in any post or office connected with the affairs of the State of Bombay and whose area thereafter falls within the State of Maharashtra or Gujarat shall continue to hold the same post or office in that State and shall be deemed to have been duly appointed to the post or office by the Government of, or other appropriate authority in, that State. The Court noted that this provision means that the individual who occupied the office of Commissioner immediately before the appointed day would continue to be a Commissioner for the purpose of the State of Gujarat and would be deemed to have been appointed to that office by the State of Gujarat from the appointed day. However, the Court held that Section 82 does not automatically confer upon the Commissioner the continuation of the functions that had been entrusted to him by the notification dated 24 July 1959, because the pre‑condition for retaining those functions – the consent of the State of Gujarat – would be missing. The Court further pointed out that it is not disputed on behalf of the Union of India that, if the notification of 24 July 1959 does not possess the force of law and Section 87 of the Reorganisation Act does not apply to it, the notification will cease to have effect after 1 May 1960, when the State of Gujarat came into existence. The respondents, however, contended that Article 258(1) contemplates the entrustment not only of executive functions but of all functions, whether legislative, executive or quasi‑judicial, and that the order of 24 July 1959 therefore has the force of law and would be saved under Section 87 of the Reorganisation Act. Consequently, the Court stated that it must examine whether the functions that may be entrusted to a State Government or to its officers with the consent of the State Government under Article 258(1) are limited solely to executive functions or include legislative and quasi‑judicial functions as well. Article 258(1) reads: “(1) Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.” The respondents placed stress, as noted in SCI/64‑21, on the word “functions,” arguing that because the term is not qualified by the word “executive,” it must be given its widest possible meaning and should include all categories of functions, whether executive, legislative or even quasi‑judicial. They further argued that the words following “functions” in Article 258(1) are merely descriptive and do not limit the scope of entrustable functions to executive matters alone. In support of this position, the respondents relied on a decision of the Allahabad High Court in Amir Khan v. State, where, with reference to Section 124 of the Government of India Act, 1935 – a provision similar in wording to Article 258(1) – it was held that the Governor‑General was entitled to entrust his functions, even if they were legislative, to the Provincial Government. The Court therefore indicated that a detailed consideration of the scope of “functions” under Article 258(1) is required before determining the fate of the Commissioner’s powers and the applicability of Section 87 of the Reorganisation Act.

In order to determine whether the functions that could be entrusted under Article 258(1) were limited to those connected with the executive power of the Union or whether they might also include functions relating to legislative or quasi‑judicial powers, the Court examined the overall scheme and placement of Part XI of the Constitution, within which Article 258(1) was situated. Part XI dealt with the “relations between the Union and the States” and was split into two distinct chapters. The first chapter, comprising Articles 245 to 255, was devoted to legislative functions and principally dealt with the allocation of law‑making authority between the Union and the States. Article 245 conferred the general power to make laws upon Parliament and the State legislatures. Article 246 allocated legislative powers according to the three lists—Union, State and Concurrent—as set out in the Seventh Schedule, and it also accorded Parliament a further authority to legislate for matters in any of the lists in territories that did not form part of any State. Article 247 authorized Parliament, by law, to establish additional courts for specified purposes. Article 248 vested the residuary power of legislation in Parliament. Article 249 permitted Parliament, in the national interest, to legislate on matters that fell within the State List when certain contingencies arose. Article 250 allowed Parliament to legislate on any State List matter whenever a proclamation of emergency was in force. Article 251 provided for the resolution of any inconsistency between laws made by Parliament under Articles 249 and 250 and laws made by State legislatures under Article 246. Article 252 empowered Parliament to enact legislation for two or more States with their consent. Article 253 gave Parliament the authority to enact laws to give effect to international agreements. Article 254 prescribed the manner of resolving conflicts between laws made by Parliament and those made by State legislatures with respect to the Concurrent List. Finally, Article 255 set out certain procedural requirements for laws that required a recommendation and prior sanction. All of these provisions within Chapter I were clearly directed toward legislative matters.

The second chapter of Part XI, heading “administrative relations,” encompassed Articles 256 to 263 and was organized into three parts: a general part, a part concerning disputes relating to water, and a part dealing with coordination between States. This chapter was mainly concerned with ensuring that the executive powers of the Union and of the States were exercised smoothly wherever the two jurisdictions overlapped in the same territory. Article 256 stipulated that the executive power of every State must be exercised in such a way that it ensured compliance with the laws made by Parliament and with any existing laws applicable in that State; it also declared that the executive power of the Union extended to the issuance of directions to a State whenever the Government of India deemed such directions necessary for that purpose. Article 257 dealt with the control of the Union over the States in certain situations and required that the executive power of a State be exercised so as not to hinder or prejudice the exercise of the Union’s executive power. Thus, the constitutional framework set out in Part XI distinguished clearly between legislative authority, which was covered by Chapter I, and the administrative or executive relationships, which were addressed in Chapter II.

In this discussion the Court noted that Article 257 provides that the Union may exercise control over States in certain cases and mandates that a State must exercise its executive power so that it does not impede or prejudice the exercise of the Union’s executive power. The provision further states that the executive power of the Union extends to issuing directions to a State for specified purposes and also to making payments of certain sums by the Government of India to the Government of a State in particular circumstances. The Court then turned to Article 258. The first clause of Article 258 had already been set out earlier. The second clause of that article provides that a law made by Parliament, even if it applies in a State on a matter over which the State Legislature has no power to legislate, may confer powers and impose duties, or may authorize the conferring of such powers and duties, upon the State or upon its officers and authorities. The Court contrasted this provision with clause (1) of the same article. Under clause (1) no entrustment of function can occur without the consent of the State Government, whereas under clause (2) Parliament may, by law, confer powers and impose duties in certain circumstances without requiring the consent of the State Government. This distinction, the Court explained, separates the entrustment of functions—an exercise of executive power under Article 258(1)—from the legislative act of conferring powers and duties under Article 258(2). Clause (3) of Article 258 deals with the payment of certain sums. In the Court’s opinion, clause (3) refers only to clause (2), because there is no question of payment after the State Government’s consent has been obtained; any payment for functions entrusted under Article 258(1) would be settled at the time consent is obtained. The Court further observed that Article 258‑A, which mirrors Article 258(1), permits the Governor of a State, with the consent of the Government of India, to entrust either conditionally or unconditionally to the Union or to its officers functions relating to any matter within the scope of the State’s executive power. Article 260, the Court said, empowers the Government of India, by agreement with the Government of any territory that is not part of India, to undertake any executive, legislative or judicial functions that are vested in that territory’s Government. The provision expressly refers to legislative, judicial and executive functions, showing that the framers did not limit themselves to the generic term “functions”. Finally, the Court examined Article 261, which commands that public acts, records and judicial proceedings be given full faith and credit. Clause (2) of Article 261 directs that such full faith and credit, as prescribed in clause (1), shall be accorded in accordance with a law made by Parliament, and clause (3) provides that final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory as provided by law.

The Court observed that Article 261 provides that a final judgment or order issued by a civil court anywhere in the territory of India may be executed throughout the country in accordance with the law. The Court noted that, unlike a provision dealing exclusively with executive powers, Article 261 explicitly distinguishes between legislative and judicial functions when it departs from the executive sphere. The Court then turned to Article 262, which concerns disputes relating to water, and explained that this article empowers Parliament, by law, to make provisions for the adjudication of such disputes; the Court stressed that the language of Article 262 does not refer to executive functions at all. Similarly, the Court pointed out that Article 263 deals with the coordination between States, provides for the establishment of Inter‑State Councils, and is clearly of an executive character. From these observations, the Court concluded that Chapter II of Part XI, which deals with administrative relations, refers to matters other than executive functions only when it expressly mentions that such matters must be dealt with by law or by court judgments; otherwise, the entire Chapter II pertains to the executive power of the Union or the State and consequently addresses executive functions.

The Court further examined the word “functions” in Article 258(1). It acknowledged that the term is not qualified by the adjective “executive,” and therefore, at first glance, it might appear that the President could entrust any type of function—legislative, quasi‑judicial, or executive—to a State government or its officers with the consent of the Union. However, the Court explained that the meaning of “functions” in Article 258(1) is governed by the phrase that follows: “in relation to any matter to which the executive power of the Union extends.” The Court noted that some authorities described these words as merely descriptive and aligned them with Article 73, which defines the executive power of the Union. Under Article 73(1)(a), the executive power of the Union covers matters on which Parliament may legislate, subject to the constitutional proviso. Consequently, an argument had been advanced that the President could ordinarily entrust any function concerning matters listed in List I, irrespective of whether the function was executive, legislative, or quasi‑judicial. The Court rejected this broader interpretation, asking whether the Constitution‑makers intended the term “functions” to include non‑executive matters, given the context and scheme of Article 258(1). The Court held that when Article 258(1) empowers the President to entrust his functions to a State government or its officers concerning any matter within the Union’s executive power, the intention was to delegate only executive functions. Accordingly, even though the word “functions” lacks the explicit qualifier “executive,” it must, in the Court’s view, be read in the colour of the executive power referred to in the surrounding provision.

In this passage the Court explained that, if the reasoning set out earlier is correct, any function that the President may entrust must be of the same character as the executive power of the Union. The Court noted that the words that follow “functions” in Article 258(1) identify the field within which those functions may be entrusted, and that field ordinarily corresponds to matters listed in List I. However, the Court said it is proper to read those words as also indicating the nature of the functions to be entrusted. The presence of the expression “executive power” immediately after “functions” was interpreted to mean that only executive functions may be entrusted by the President to a State government or its officers under Article 258(1). The Court further observed that the language of Article 258(1) itself supports this conclusion. It stressed the terms “entrust functions” and “with the consent of”. The act of entrusting, the Court said, creates an agency; when the President entrusts his functions to a State government or its officers, he is establishing an agency to perform those functions, and such an agency is consistent with the execution of the Union’s executive power vested in the President. By contrast, the Court pointed out that Clause (2) of the same article speaks of conferring powers and imposing duties by law, whereas Clause (1) concerns the entrustment of functions, a wording more suitable to the creation of an agency for executing Union power. The Court also emphasized that entrustment can occur only with the consent of the State government. This requirement of consent, the Court argued, further indicates that the functions involved are executive in nature, resulting in an agency distinct from that contemplated in Article 53. Accordingly, such consent‑based entrustment amounts to appointing another entity to act on behalf of the President in exercising Union executive power. The Court added that consent is a relevant concept when executive functions are delegated to an agency that is not otherwise obligated to perform them. Generally, laws are not made with another’s consent, notwithstanding the special provision in Article 250, although consent is typically sought when one party wishes another to perform an executive act. Therefore, the Court concluded that the only sensible meaning of Article 258(1) is that it permits the President, with the State’s consent, to have the State government or its officers carry out functions that relate exclusively to the Union’s executive power, and not to any other type of power. Extending the entrustment to non‑executive functions, the Court warned, would lead to unsettling consequences.

The Court observed that the Constitution contains numerous provisions that assign legislative authority, whether delegated or inherent, to the President. It held that if the term “functions” in Article 258(1) were interpreted to include legislative functions, and the succeeding words merely defined the subject‑matter field, then the limitation to List I would not restrict the nature of the functions. Consequently, under such an interpretation, any legislative power of the President relating to matters listed in List I could be delegated to a State Government or to its officers. To illustrate this point, the Court referred to Article 123, which empowers the President to promulgate ordinances in specific situations, and those ordinances possess the same force as an Act of Parliament. The Court noted that ordinances may be issued on subjects falling within List I as well as List III. Therefore, if Article 258(1) permitted the entrustment of legislative functions, the President could lawfully assign his ordinance‑making authority concerning List I matters to a State Government or its officers. The Court described such a consequence as startling and said that the interpretation advanced by the learned Attorney‑General could not have been intended by the framers of the Constitution. It concluded that when Article 258(1) mentions the entrustment of functions relating to any matters within the scope of the Union’s executive power, the provision not only identifies the field—generally List I of the Seventh Schedule—but also confines the nature of the entrusted functions to executive functions solely. If, instead, the words following “functions” were read merely as a geographical or subject‑matter limitation, then any kind of function, whether legislative, executive or even quasi‑judicial, connected with List I could be transferred to a State Government or its officers. Such a reading would permit the President’s ordinance‑making power under Article 123, insofar as it pertains to List I subjects, to be delegated, a result the Court found implausible and contrary to constitutional intent. The Court then listed other constitutional articles that confer legislative powers on the President, namely Article 98(3), Article 101(2), Article 118(3), Article 309, the proviso to Article 320(3), Article 357, and Articles 372 and 372‑A, each granting rule‑making or regulatory authority. A survey of these provisions, the Court said, demonstrated that whenever the Constitution intended the President’s legislative power to be delegated, it did so by expressly providing a mechanism within the relevant article.

In this case the Court observed that whenever the Constitution intends to allow the President to delegate legislative power to another person, it does so by inserting an explicit provision in the text of the Constitution itself. For instance, Article 309 confers the power to make rules relating to Union services and posts, and the proviso to that article expressly states that the President, or any person whom the President may direct, may make rules concerning recruitment and conditions of service for persons appointed to Union services and posts. In a similar manner, Article 357 provides that when a proclamation under Article 356 declares that the legislative powers of a State shall be exercisable by or under the authority of Parliament, the President may be given the power of the State Legislature to make laws, and the President may also be authorised, subject to such conditions as he deems appropriate, to delegate that conferred power to any other authority that he may specify. The Court therefore concluded that the Constitution contains a specific provision for every situation in which the framers intended the President’s legislative power to be delegated. Consequently, it is difficult to accept the argument that Article 258(1) permits the President to entrust his legislative functions, for example with respect to matters in List I, to the State Government or any of its officers as a mere side‑step. The Court further held that although the term “functions” in Article 258 is not qualified by the word “executive”, the language that follows it in clause (1) serves a dual purpose: first, it limits the field within which any entrustment may occur to the matters ordinarily covered by List I; and second, it limits the nature of the functions that may be entrusted to executive functions. The Court also pointed out that almost every Central Act contains a provision that confers rule‑making power on the Central Government, and under section 3(8)(b) of the General Clauses Act No 10 of 1897 the term “Central Government” is defined to mean the President. If the learned Attorney‑General’s contention were accepted, Article 258(1) would effectively authorize the President to delegate rule‑making powers under various statutes to the State Government or its officers, a result that the Constitution‑makers could not have intended when they drafted Article 258(1). The Court noted that the President is under no obligation to delegate legislative functions to the State Government or its officers and would, in practice, rarely do so. The mere fact that the President is unlikely to make such delegations does not justify interpreting Article 258(1) in a way that conflicts with the clear intention of the Constitution‑makers, as derived from the overall scheme and context of the Article. Thus, the Court was of the opinion that when Article 258(1) refers to the entrustment of functions, it is confined solely to the President’s executive functions and not to legislative functions.

In this case, the Court observed that the power to entrust functions under Article 258(1) was confined strictly to the executive functions of the President and to no other category of functions. Accordingly, the Court held that the decision in Amirkhan’s case, which applied Section 124(1) of the Government of India Act 1935— a provision that is pari materia with Article 258(1)—must be considered incorrect. The appellant further contended that, even if Article 258(1) were limited to executive functions, the President was not authorized to delegate the particular function in question to a State Government officer because of the proviso to Article 73(1). Article 73(1) states, in sub‑clause (a), that the executive power of the Union extends to matters for which Parliament has authority to legislate. This would prima facie include subjects listed in both List I and List III of the Constitution. However, the proviso adds that the executive power referred to in sub‑clause (a) does not, unless expressly provided in the Constitution or in any law made by Parliament, extend to any State in matters over which the State Legislature also has legislative competence. The effect of the proviso is that Union executive power normally does not cover matters in List III, except where either (i) the Constitution contains an express provision, or (ii) a law made by Parliament provides otherwise. The appellant argued that no such law existed and that there was no express constitutional provision permitting entrustment in a case of land acquisition by the Union, because the power to make laws regarding acquisition and requisitioning falls under entry 42 of List III. Consequently, the appellant maintained that, as the matter related to List III, the Union’s executive power did not extend to it and therefore the President could not issue an order under Article 258(1). The Court indicated that it was not necessary to express an opinion on this particular aspect, having already decided other points raised. The principal issue before the Court was whether the notification dated 24 July 1959 qualified as “law” for the purposes of Section 87 of the Reorganisation Act. The appellant’s first argument on this point was that Article 258(1) concerns the entrustment of executive functions; therefore any order made under it would be an executive order and could not be considered law. The Court noted that, while this proposition might appear correct at first glance, it was not conclusive. The Court therefore affirmed that it would have to examine the substance of the order issued under Article 258(1) to determine whether it satisfied the definition of “law” contained in the relevant provision.

Section 2(d) of the Reorganisation Act provides that the term “law” embraces any enactment, ordinance, regulation, order, bye‑law, rule, scheme, notification or any other instrument which, immediately before the appointed day, possessed the force of law in the whole or in any part of the State of Bombay. The provision therefore adopts an inclusive description and does not, by itself, give a precise definition of what the word law means. Moreover, the various categories listed in section 2(d) are not automatically statutes; they become law only when they actually have the force of law. It is not contested that not every order issued by the Government or every notification published will acquire the status of law. Only those orders and notifications that have the force of law will qualify as “law” within the meaning of section 2(d) and consequently as law for the purposes of section 87 of the Reorganisation Act. Accordingly, the Court must determine the exact meaning of the expression “having the force of law” in order to decide whether a particular order or notification satisfies the definition contained in section 2(d). The next step is to consider the concept of law that should be kept in mind before making such a determination. In the broadest sense, the term law signifies a command that obliges a person or persons to follow a certain course of conduct; such a command must emanate from a determinate person or group of persons and must be backed by the threat of displeasure if the rule is disobeyed. This view is found in Austin’s jurisprudence. Critics have pointed out that this definition would exclude customs or usages that have the force of law, because customs are not commands issued by a determinate authority. Salmond therefore expanded the definition, describing law as a “body of principles recognised and applied by the State in the administration of justice.” Paton, in the second edition of his book on jurisprudence, defines law as “a legal order tacitly or formally accepted by a community, consisting of the body of rules which that community considers essential to its welfare and which it is prepared to enforce by creating a specific mechanism for securing compliance.” From these definitions it follows that, whether law originates as a sovereign command or as a custom possessing the force of law, the essential idea is that it must consist of a body of rules governing the conduct of persons who form the community within which the law operates, and that community must enforce those rules through the necessary machinery. Consequently, for a government‑issued notification or order to possess the force of law, it must contain a rule or a coherent set of rules that regulate the behaviour of individuals living in that community.

In order for a rule to qualify as law, it must regulate the conduct of one or more persons who live within the community, and it must be capable of enforcement by the courts or by any other mechanism that has been established for that purpose. The Court therefore examined whether the definition contained in section 2(d) of the Reorganisation Act satisfies this requirement. The core of that definition is that an order or notification can be regarded as law only if it possesses the “force of law”. The Court emphasized that the phrase “force of law” is distinct from the phrase “authority of law”. Numerous governmental orders are issued under the authority of law, yet not every such order can automatically be said to have the force of law. For an order to acquire the force of law, it must first meet the fundamental concept of law, namely that it contains a rule or a set of rules which direct the behaviour of individuals in the community and which can be enforced through the courts or other designated enforcement machinery.

If an order is issued merely under the authority of law but fails to prescribe any specific course of conduct for members of the community, the Court held that such an order cannot be considered law. Because it does not command any particular behaviour, there is no breach to be adjudicated and consequently no need for enforcement by the courts or any other authority. While an order of this nature may nevertheless enjoy the authority of law in a jurisdiction that observes the rule of law, the Court reiterated that “authority of law” and “force of law” must remain separate concepts. An order possessing only the authority of law does not automatically acquire the force of law unless it conforms to the basic legal concept previously described. The Court noted that it had been submitted that any order bearing the authority of law would inevitably be enforced by the courts and therefore possess the force of law. The Court disagreed, calling this view a misconception. An order that merely carries the authority of law may be recognised by the courts, but unless it imposes a rule of conduct that the community is required to follow, there is no basis for court enforcement. The Court further explained that recognition of an order’s authority by judicial or other bodies is not equivalent to its enforcement; only when an order can actually be enforced by courts or appropriate authorities does it attain the force of law. The Court also observed that courts may acknowledge governmental orders that lack direct legal authority yet do not conflict with any existing law, but such orders, lacking a enforceable rule, cannot be said to have the force of law nor be enforceable by the courts or other authorities.

The judgment observed that assertions of force of law were untenable because they omitted the essential notion of law that had been explained earlier. It then examined section 2(d) of the statute in the light of that essential notion and considered how each term listed under “law” satisfied the basic concept. The first term recorded in section 2(d) was “enactment.” The judgment explained that an enactment necessarily possessed the force of law because it represented the will of the legislature, was expressly enacted as law by that legislature, and consequently contained a set of rules that persons living in the relevant community were required to obey. The second term was “ordinance having the force of law.” The judgment noted that an ordinance enacted, for example, under article 123 or article 213 of the Constitution stood on exactly the same footing as an enactment and therefore automatically had the force of law. The judgment added that any other kind of ordinance could acquire the force of law provided it prescribed a binding rule of conduct and the body that issued it possessed the lawful authority to prescribe such a rule; such ordinances were usually subordinate legislation. The third term was “regulation.” The judgment described two categories of regulation. In the first category a regulation was a direct command of the legislature and therefore stood on the same level as an enactment; the judgment cited old regulations issued by the Governor‑General before 1857 under his law‑making power as examples that continue to operate in the country. In the second category a regulation was a form of subordinate legislation; in that case it had to consist of a body of rules that governed the conduct of persons in the community and it could be enforced by courts or other authorities only if the issuing body had the proper authority to make those regulations. The fourth term was “order.” The judgment explained that orders could be of two sorts. The first sort comprised purely executive orders that did not lay down any course of conduct for anyone; such orders might nevertheless enjoy the authority of law or might simply not be contrary to any law, and courts or other authorities could recognise them. The second sort consisted of orders that functioned as subordinate legislation and that laid down enforceable rules of conduct; examples included various orders issued under the Defence of India Act, 1939 and the Essential Commodities Act, 1955, which set out rules that regulated the behaviour of persons in the community and were enforceable by courts or other authorities. The final term discussed was “bye‑law.” The judgment stated that bye‑laws were a well‑known form of subordinate legislation that laid down general rules of conduct applicable to persons and that such bye‑laws were enforceable by courts or other authorities provided they were passed by a body that possessed the requisite authority of law.

The Court explained that the term “Rule” referred to a well‑known category of subordinate legislation that set out general rules of conduct, and that such rules became enforceable by courts or other authorities only when they were enacted by a body possessing the requisite authority. It then turned to the term “scheme,” noting that schemes could fall into two distinct categories. In the first category, a scheme embodied subordinate legislation that contained a body of rules binding on the persons to whom it applied; when such a scheme was passed by a body with the necessary authority, it acquired the force of law and could be enforced by courts or other authorities. In the second category, a scheme was merely an executive measure that did not contain any rule of conduct for anyone to follow; because it lacked a rule of conduct, it possessed no legal force and could not be enforced by courts or other authorities. The Court next described the term “notification,” stating that notifications also came in two forms. The majority of government orders were issued as notifications so that the public could become aware of them, but not all such notifications carried the force of law. Only those notifications that were a form of subordinate legislation, issued by a body authorized to promulgate them, and that laid down enforceable rules of conduct for community members acquired legal force. Other notifications, however, imposed no rule of conduct; for example, notifications concerning appointments and transfers of officers were merely executive communications intended to inform the public and did not create any binding rule of conduct. Finally, the Court addressed “other instruments,” observing that, like schemes, they could be of two kinds. When an instrument possessed the characteristics of subordinate legislation and contained a rule or a body of rules that persons in the community were required to follow, it obtained the force of law and could be enforced by courts or other authorities. Conversely, instruments that were purely executive in nature—such as sale‑deeds, mortgage deeds, and treaties between sovereign states—did not themselves have the force of law, which is why Article 253 provided a specific legislative mechanism to give effect to international agreements. The Court concluded that for any notification or order to acquire the force of law, it must contain a rule or set of rules governing conduct, be enacted by a body with the proper authority, and thereby become enforceable by courts or other authorities.

The Court explained that a notification will have the force of law only when it imposes a rule or a course of conduct that individuals living in the community must observe, and when that rule is enforceable by courts or other authorised bodies. In this regard, the respondent advanced the contention that many statutes empower the Government, or an authority designated by the Government, to make rules, and that the mere naming of the authority by the Government gives the order the character of law. The Court rejected that view. It held that when the Government merely names an authority, the act is an executive function; the authority acquires the character of law only when it proceeds to frame subordinate legislation that sets out a conduct‑bearing rule enforceable by courts or other authorities. The Court identified three distinct stages in such a process: first, the law confers rule‑making power on the Government or its nominee; second, the Government designates the nominee; and third, the nominee exercises the rule‑making power. The Court considered the first and third stages to be legislative acts, while the second stage, the designation, was characterised as an executive act, noting that it is merely the appointment of the person or body that will make the law, and citing the record as “1/SCI/64--22”. Applying these principles, the Court examined the specific notification under consideration. The notification states that, in exercise of the powers conferred by clause (1) of Article 258 of the Constitution, the President, with the consent of the State Government, entrusts the Commissioners of Divisions in the State of Bombay with the functions of the Central Government under the Land Acquisition Act, 1894 (Act 1 of 1894) concerning acquisition of land for Union purposes within the territorial jurisdiction of those Commissioners, subject to the same control exercised by the Government of Bombay as is periodically exercised in respect of land acquisition for State purposes. Effectively, the notification appoints the Commissioners of Divisions to perform the Central Government’s functions under the Act for Union acquisitions. The notification does not prescribe any rule of conduct for members of the public to follow; rather, it merely transfers the specified powers to the Commissioners. The Court acknowledged that the notification possesses the authority of law because it is issued under clause (1) of Article 258 of the Constitution. Consequently, any order issued by a Commissioner pursuant to the powers granted by the notification will be recognised by the courts.

The Court observed that a notification cannot be enforced by the courts because no citizen may approach a court to compel its implementation. A notification acquires legal force only when it imposes a rule of conduct that citizens are required to follow, thereby rendering it enforceable either at the instance of the citizens or of the government when the rule is breached. The mere fact that courts will notice and recognize a notification, and that it carries the authority of law, does not, in the Court’s view, convert the notification into “law” within the meaning already discussed. The notification under consideration merely appoints a particular person to perform duties that would otherwise be performed by the Central Government under the Act. Consequently, the Court held that such a notification cannot possess the force of law, even though it is backed by legal authority that makes it recognizable by the courts. Since the notification does not lay down any rule or body of rules regulating the conduct of persons in the community, there is no basis for its enforcement as law by courts or other authorities, and therefore it does not have the force of law. The Court classified the notification as an executive order that, while having the authority of law behind it, does not attain the status of law within the meaning of section 2(d) of the Reorganisation Act.

The respondents contended that the notification effectively amended the definition of “appropriate government” contained in section 2(e) of the Act, which reads: “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.” They argued that the notification added the words “where an order under Article 258(1) of the Constitution has been passed, the officer to whom the functions of the Central Government under the Act are entrusted.” The Court found no merit in this argument. While it agreed that courts will recognize the notification and an order issued by a Commissioner of a Division pursuant to it will have the same effect as an order of the Central Government, the Court could not accept that an order under Article 258(1) by the President, which entrusts certain functions to a State officer, can amount to an amendment of the law to which the order relates. The Court emphasized that any amendment to an enactment must be effected through the legislative process prescribed by the Constitution and by Article 258(1), and a notification cannot serve that purpose.

The Court observed that Article 258(1) contains no provision for a legislative process to amend an enactment. It accepted that the effect of the notification at issue is to permit the Commissioner of a Division to exercise powers that the Central Government may exercise under the Act. However, the Court stressed that this consequence does not alter the definition of “appropriate Government” contained in the Act, and consequently the notification does not amount to an amendment of that definition. Accordingly, the Court rejected the respondents’ contention that the order under Article 258(1) effected a legislative change.

The Court then turned to the authorities cited by the respondents. The principal case relied upon by the respondents was The Edward Mills Co. Limited v. the State of Ajmer. In that decision the Court examined an order issued under section 94(3) of the Government of India Act, 1935, and considered whether such an order qualified as a law in force that could be adapted. The Court held that the order made under section 94(3)—which corresponded to Article 239 of the Constitution and dealt with the governance of Chief Commissioner’s Provinces—was a law in force within the meaning of Article 372 of the Constitution and therefore could be adapted. The present Court regarded that case as clearly distinguishable and limited it to the facts on which it was decided. The order in The Edward Mills case was promulgated under section 94(3) of the Government of India Act, a provision that, as previously noted, corresponded to Article 239 of the Constitution. By contrast, the matter before this Court concerns an order issued under Article 258(1) of the Constitution. The provision in the Government of India Act that corresponds to Article 258(1) is section 124(1). Consequently, the Edward Mills decision does not provide direct authority for the present case, which involves Article 258(1) and its counterpart, section 124(1). Moreover, section 94, linked to Article 239, governed the administration of Chief Commissioner’s Provinces and encompassed all categories of functions—executive, legislative, and judicial. In the present case, the Court emphasized that Article 258(1) pertains solely to the executive functions of the Union, and therefore no analogy exists between an order made under Article 258(1) and an order made under section 94(3) of the Government of India Act. On these grounds, the Court found that The Edward Mills case offers no assistance to the respondents.

The Court then considered the next authority cited, Madhubhai Amathalal Gandhi v. the Union of India. In that matter the Court dealt with a notification issued under the Securities Contracts (Regulation) Act, No. 42 of 1956. The Court noted that there was no dispute in that case regarding whether the notification constituted law; the notification was accepted without controversy as a law. Given that the issue in Madhubhai Gandhi was limited to the status of a specific notification as law, the Court held that the case does not support the respondents’ argument that every notification issued under Article 258(1) automatically possesses the force of law.

The Court observed that the proposition that every notification automatically possesses the force of law could not be accepted. It examined the case of The Public Prosecutor v Illur Thippayya, in which orders issued under the Essential Supplies (Temporary Powers) Act, No 24 of 1946, were held to have the force of law because they created a body of rules governing the conduct of persons with respect to the matters covered by the orders; consequently those orders constituted subordinate legislation and therefore offered no assistance to the respondents. The Court then turned to the decision in The State of Bombay v F N Balsara, where the order in question was made pursuant to section 139 of the Bombay Prohibition Act, No 25 of 1949, which empowered the Government by general or special order to exempt any intoxicant or class of intoxicants from the operation of any provision of that Act. That order was unmistakably subordinate legislation, it possessed the force of law, and the case likewise did not aid the respondents. Further authority cited included King‑Emperor v Abdul Hamid and Ramendrachandra Ray v Emperor. In the first of those cases the Superintendent of Police issued an order under section 30 of the Police Act prohibiting processions; the Patna High Court held that the order was law because it was made under authority vested in the Superintendent by the Police Act, prescribed a course of conduct for persons within his jurisdiction, made disobedience punishable, and could be enforced by the courts. The second case involved a comparable prohibitory order under the Calcutta Police Act and was held to have the force of law for the same reasons. Both decisions were therefore of no assistance to the respondents. The respondents also relied on Chanabassapa Shivappa Tori v Gurupadappa Nurgeppa Hanji and Haji K K Moidu v Food Inspectors Kozhikode, where the respective High Courts treated certain notifications as having the force of law. The Court found it unnecessary to examine those cases in detail, noting that doing so would require a detailed analysis of the various enactments under which the notifications were issued, and that the view of the High Courts that the notifications were law was open to serious doubt. Consequently, the Court concluded that article 258(1) of the Constitution contemplates only the entrustment of executive functions; accordingly, a presumption arises that any notification issued under that provision, when it entrusts such functions to an officer in a State, is prima facie an executive act and cannot possess the force of law.

In this case the Court held that the notification dated 24 July 1959 was only an executive order that appointed certain officers to carry out functions of the Central Government under the Act. The Court cited the authorities reported in 1923 I.L.R. II Patna 134, 1931 I.L.R. LVIII Cal. 1303, 1958 I.L.R. Mys. 48 and 1961 I.L.R. Kerala 639 to support its view that such a notification could not acquire the force of law. Consequently the Court concluded that the notification could not be regarded as a law within the meaning of section 2(d) of the Reorganisation Act and, therefore, could not be said to continue under section 87 of the same Act. Because the State of Gujarat had not given its consent, the Commissioner of Baroda was without authority to act upon that notification after 1 May 1960. Accordingly, any subsequent notifications issued by the Commissioner under sections 4 and 6 of the Act, which were based on the July 1959 order, were held to be invalid and were ordered to be struck down. The Court further observed that the President later issued a notification under article 258(1) of the Constitution on 12 July 1961, which entrusted Commissioners of Divisions in Gujarat with functions under the Act with the State’s consent; however, this later notification could not cure the earlier notifications under sections 4 and 6 because those earlier notifications were made before the later one. In view of this determination regarding the nature of the July 1959 notification, the Court found it unnecessary to consider the remaining arguments raised by the appellant. The Court therefore allowed the appeal, awarded costs, set aside the High Court’s order, granted the writ petition and declared the notifications issued under sections 4 and 6 of the Act by the Commissioner of Baroda for acquiring the appellant’s property to be null and void. In the final order of the Court, acting in accordance with the majority opinion, the appeal was dismissed with costs.