State Of Bombay (Maharashtra) vs Shivbalak Gourishanker Dube and Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 269 of 1962

Decision Date: 31 August 1964

Coram: P.B. Gajendragadkar, J.C. Shah, N. Rajagopala Ayyangar

In the matter titled State of Bombay (Maharashtra) versus Shivbalak Gourishanker Dube and others, the Supreme Court of India delivered its judgment on 31 August 1964. The opinion was authored by P. B. Gajendragadkar, Chief Justice, and was joined by Justices J. C. Shah and N. Rajagopala Ayyangar. The case was reported in 1965 AIR 661 and in the 1965 Supplement to the Supreme Court Reports, volume 1, page 211. The legal issue concerned the interpretation of the Bombay Tenancy and Agricultural Laws Act of 1948, specifically sections 65 and 83, and whether the statutory provision for delegation of power also encompassed the delegation of duties that are necessary for the exercise of that power.

The factual backdrop was that the State, acting as the appellant, served a notice to the respondents informing them that their agricultural lands, which the respondents owned, had remained fallow. The notice warned that, unless the respondents cultivated the lands in the following agricultural season, the State would resume management of the lands under section 65 of the Act. Subsequently, the Deputy Collector conducted an enquiry as ordered and, based on that enquiry, issued an order under section 65 directing that the State resume the lands for cultivation. The respondents endeavoured to have the Deputy Collector’s order altered but were unsuccessful. They then instituted a suit seeking a declaration that the Deputy Collector’s order was illegal and void, and that the order could not dispossess them of their property. The trial court dismissed the suit. The respondents appealed to the High Court, which, after a fair and reasonable construction of section 65 read with section 83, held that the State could delegate the powers prescribed by section 65 but could not delegate the duty incidental to exercising that power. Accordingly, the High Court set aside the decree of the trial court. The respondents then obtained special leave to appeal to the Supreme Court.

The Supreme Court held that section 83 authorises not only the delegation of the powers expressly mentioned in the provision but also the delegation of duties or functions that are incidental to those powers and are integrally connected with them, referring to the authorities in Edward Liso Mungoni v. Attorney‑General of Northern Rhodesia, [1960] 2 W.L.R. 389. The Court further observed that section 65 does not require the Deputy Collector himself to physically inspect the agricultural fields to ascertain whether they are fallow. The Deputy Collector may either gather evidence personally or assign the collection of evidence and the on‑site inspection to a subordinate officer. The report of such local inspection and the accompanying evidence would be forwarded to the Deputy Collector, who would then base his enquiry on that material. This arrangement, the Court explained, does not constitute a delegation of duty, but merely a practical method of gathering information for the Deputy Collector’s decision‑making. The judgment therefore affirmed that the delegation of power under the Act includes the delegation of incidental duties, and that the procedure followed by the Deputy Collector was permissible.

In this case, the Court noted that the appeal was taken in civil appellate jurisdiction as Civil Appeal No 269 of 1962, filed by special leave against the judgment and decree dated 5 October 1959 of the Bombay High Court in First Appeal No 712 of 1955; counsel for the appellant, the State of Bombay (now Maharashtra), and counsel for the respondents, the four owners of the agricultural lands, were instructed, and the judgment was delivered by Chief Justice Gajendragadkar. The short question that required resolution was to ascertain the scope and effect of the provisions contained in section 65 read together with section 83 of the Bombay Tenancy and Agricultural Lands Act, 1948 (No 67 of 1948), hereinafter called the Act. The four respondents were the owners of certain agricultural lands situated at Deokhope in Taluka Palghar in Maharashtra. On 23 June 1951, the appellant served a notice on the respondents informing them that the lands they owned had remained fallow since the agricultural season of 1948‑49 and that, unless the respondents took steps to bring the lands under cultivation in the upcoming season, the State would resume management of the lands pursuant to section 65 of the Act. The notice further required the respondents, if they wished to cultivate the lands, to give intimation of their intention within fifteen days of receipt of the notice. Subsequently, an enquiry ordered by the Deputy Collector was conducted, and on 30 December 1951 the Deputy Collector issued an order under section 65 directing that the lands be resumed by the Government for cultivation. After the order, the respondents made representations to the Deputy Collector, asserting that they had taken steps to cultivate a portion of the land; as a result, approximately eight acres and thirty ghunthas were released to them on the ground that they had complied with the direction contained in the earlier notice. The order of the Deputy Collector concerning the remaining lands, however, was left undisturbed. In response, respondent No 1 filed an application before the Collector on 24 March 1952 seeking relief, but the application was rejected. The respondents then approached the Revenue Department, but that effort also failed to obtain any remedy. Consequently, the respondents instituted the present suit on 23 December 1953, seeking a declaration that the order dated 30 December 1951 passed by the Deputy Collector was illegal and void and that it could not dispossess them of lands that lawfully belonged to them. Along with the declaration, the respondents prayed for a decree for possession of the lands and for mesne profits against the appellant. The appellant contested the claim, arguing that the suit as framed was unlawful.

The appellant argued that the suit could not be entertained because it was barred by Section 63(1) and Section 85 of the Act. On the substantive issues, the appellant disputed the correctness of the allegations made by the respondents and asserted that a proper enquiry had been conducted in accordance with the provisions of the Act before the impugned order was issued. The appellant further maintained that the civil court possessed no jurisdiction to examine the propriety or the reasonableness of the conclusion reached by the Deputy Collector prior to the issuance of the impugned declaration. The trial judge, after framing the appropriate issues on the basis of the pleadings, mainly accepted the arguments presented by the appellant. In his view, the suit was barred by Sections 65(1) and 85 of the Act, and the declaration made by the Deputy Collector was neither null nor void. The judge also rejected the respondents’ challenge to the statutory provisions contained in Sections 65 and 66, holding that those sections did not conflict with Articles 19 and 31 of the Constitution. Moreover, the judge found that the respondents’ grievance concerning the propriety or reasonableness of the enquiry preceding the impugned order was without merit, and consequently dismissed the suit. The respondents appealed the decision to the High Court, advancing three separate contentions. First, they claimed that the land concerned by the declaration did not fall within the definition of “land” under the Act, rendering the provisions inapplicable. Second, they argued that before the Government could exercise its powers under Section 65, it was obligated to be satisfied that the land had remained uncultivated for two consecutive years, a condition they said was not fulfilled because the State Government had improperly delegated to subordinate officers the duty to determine that satisfaction. Third, they contended that the authority competent to make the declaration could not delegate any part of its function and must conduct the enquiry personally. The High Court upheld the second contention, concluding that a fair and reasonable construction of Section 65(1) read with Section 83 permits the State Government to delegate the powers prescribed by Section 65(1) but not the duty incidental to exercising those powers. Accordingly, the High Court set aside the trial court’s decree and reversed the decision, granting relief to the respondents and ordering the delivery of possession and payment of mesne profits as claimed.

The decree ordered the delivery of possession and the payment of mesne profits as claimed by the respondents. The appellant challenged this decree by obtaining special leave to approach the Court, and the sole issue raised on its behalf by counsel was that the High Court’s interpretation of the scope and effect of the provisions contained in Section 65(1) read together with Section 83 was unsound. Section 65(1) states that if the State Government is satisfied that for any two consecutive years a piece of land has remained uncultivated or that its full and efficient agricultural use has not been made because of the holder’s default or any cause beyond his control, the State Government may, after conducting such enquiry as it deems appropriate, declare that the management of that land shall be assumed, and that declaration shall be conclusive. Section 83 provides that the State, subject to any restrictions and conditions it may impose by notification in the Official Gazette, may delegate to any officer not below the rank of Assistant or Deputy Collector all or any of the powers conferred on it by the Act.

The High Court appeared to hold that while the State Government was competent to delegate its powers under Section 65(1), it could not delegate the duty or obligation to conduct the enquiry that must precede the declaration. According to that view, the State Government could delegate the authority to make the declaration under Section 83, but before exercising that authority it was required to fulfill an independent obligation to investigate whether the land had remained uncultivated or fallow for the period prescribed by the statute, and that investigative duty could not be delegated. Both parties agreed that the enquiry had not been carried out by the State Government; consequently, if the High Court’s position were correct, the declaration in question would be vulnerable to challenge because it was not preceded by a proper enquiry. Counsel for the appellant argued that the High Court’s view was plainly erroneous, and the Court found this contention to be well‑founded. Section 83, in its terms, authorises the State Government to delegate to any officer of the specified rank all or any of the powers conferred upon the State by the Act. The Court therefore concluded that the authority to delegate the powers expressly conferred by Section 83 would be rendered almost meaningless if the duty to hold the prerequisite enquiry could not be delegated. Now, it seems to us that the

In this case, the Court observed that the authority granted by section 83 for the State Government to delegate any or all of the powers expressly conferred upon it would become virtually meaningless if the duty to conduct an enquiry, which is a condition precedent to the exercise of those powers, could not itself be delegated. The Court explained that the power which may be delegated is inseparable from the enquiry that must precede the exercise of that power; the two are so closely linked that one cannot function without the other. Accordingly, for section 83 to operate effectively, the delegation of the power authorized by that provision must necessarily include the delegation of the obligations or functions that are essential to the exercise of the power. The Court noted that, if the view taken by the High Court were correct, it would imply that while the State Government could authorize any officer belonging to the prescribed class to exercise its powers under section 65(l), the State Government would still be required to conduct the preliminary enquiry itself and could not delegate the authority to hold such an enquiry to any officer. The Court emphasized that this result is plainly illogical, because it would be unreasonable to accept the validity of an authority that confers powers while simultaneously insisting that the conditions precedent to the exercise of those powers are of a separate and distinct character, thereby requiring the State Government, and not a delegate, to perform the enquiry.

The Court further observed that the High Court appeared to have reached its conclusion—that the duty, as distinct from the power, cannot be delegated—perhaps because there would be no avenue of appeal against the enquiry or the conclusion reached therein. The Court declined to express an opinion on that particular strand of the High Court’s reasoning, noting that any view on the matter would depend upon the construction of section 86 of the Act. Nevertheless, the Court held that, irrespective of any question concerning the competence of an appeal, a fair and reasonable construction of section 83 requires that the provision authorizes not only the delegation of the powers expressly mentioned, but also the delegation of duties or functions that are incidental to, and integrally connected with, the exercise of those powers. To support this proposition, the Court referred to the Privy Council decision in Edward Liso Mungoni v. Attorney‑General of Northern Rhodesia. In that case, dealing with a similar question under regulation 16(1) of the Emergency Powers Regulations, 1956 of Northern Rhodesia, the Privy Council held that the power and the duty under that regulation were so interwoven that they could not be split between different persons; the regulation embodied a power coupled with a duty rather than a mere duty separate from a power, and consequently the same person must exercise both the power and the accompanying duty.

The Court noted that the Privy Council had ruled that the individual who exercised a delegated power was required also to perform the duty attached to that power. Accordingly, the Privy Council held that, when the Governor delegated his functions under regulation 16(41), he could transfer both the power and the corresponding duty to the same person; he could not assign the power to one individual while retaining the duty himself. The Court explained that allowing a delegation of only the power, while leaving the duty—particularly the duty to conduct the incidental enquiry that inevitably leads to the exercise of the power—undivided, would produce absurd results. In effect, the Court said, the view adopted by the High Court would render the authority to delegate the power entirely meaningless because the duty that gives substance to the power would remain with the delegator, defeating the purpose of delegation.

The Court pointed out that counsel for the respondents, identified as Mr. Pathak in the record, did not attempt to defend the portion of the High Court’s judgment that endorsed the view that the duty could not be delegated separately. The Court observed that, following the High Court’s decision in this case, the Maharashtra Legislature found it necessary to amend section 83 of the Act to remove the uncertainty created by the High Court’s interpretation. Section 29(a) of the Amending Act, as quoted, substituted the words “Powers conferred or duties imposed” for the earlier wording and stipulated that, from 31 October 1949, any delegation or purported delegation by the State Government under section 83 of any duty imposed would, notwithstanding any judgment, decree, or order of any Court, be deemed always to have been valid. The amendment further declared that the performance of any such duty by any officer would, for all purposes, be valid and effective and could not be challenged in any Court on the ground that the State Government lacked power to delegate the duty. Clause (b) added the words “and duties” to the marginal note, as recorded in the citation of the 1960 law report.

The Court stated that it was unsurprising that, given the serious consequences that would have arisen if the appealed judgment had been left unchanged, the legislature chose to make a suitable amendment so as to avoid any disruption to the peaceful and orderly operation of the relevant provisions of the Act. Recognising the weakness in the High Court’s reasoning, counsel for the respondents sought to support the High Court’s decision on a different basis. He argued that the enquiry had been conducted by the Talathi and the Mamlatdar under section 65, not by the Deputy Collector, and therefore the declaration made by the Deputy Collector was invalid. In other words, the argument contended that while the State Government might validly delegate its powers under section 65(l) to the Deputy Collector, the Deputy Collector—being a delegate of the State Government—could not further delegate any portion of his delegated power or authority to a subordinate, which was alleged to have occurred in the present case. This line of argument was premised on the proposition that, in exercising his powers under section 65(l), the Deputy Collector must personally conduct the enquiry and may not delegate that function to any other revenue officer.

The Court observed that Section 65(l) does not obligate the Deputy Collector to personally conduct the field inquiry himself, nor does it forbid him from seeking assistance from subordinate revenue officers. The provision merely requires that the State Government, or a delegate thereof, may make an enquiry and, after being satisfied by that enquiry, may declare that the management of the land shall be resumed. Consequently, the manner in which the enquiry is carried out remains a matter of full discretion to the State Government or to its authorised representative. In the present case, the Deputy Collector exercised that discretion by directing his subordinates to gather the material necessary for the enquiry. Accordingly, the Talathi visited the fields, verified whether the lands of the respondents had remained fallow for the prescribed period, and forwarded his findings to the Mamlatdar. The Mamlatdar then compiled a report and submitted it to the Deputy Collector. Thus, the Deputy Collector’s role was to receive the relevant information, examine it, and determine whether the lands were indeed lying fallow. The Court held that this procedure does not involve any improper delegation, because the substantive enquiry and the decision were ultimately made by the Deputy Collector himself. Section 65(l) does not compel the Deputy Collector to be physically present at the agricultural fields; he may either record evidence personally or entrust the collection of evidence and on‑site inspection to a subordinate officer. The reports and evidence gathered by the subordinate are forwarded to the Deputy Collector, who then holds the enquiry based on that material. Therefore, while the mechanical task of gathering facts was performed by a subordinate, the authority to conduct the enquiry and to reach a conclusion remained with the Deputy Collector, and the principle that a delegate cannot further delegate was not triggered in these circumstances.

The Court next considered the reliance placed by counsel on the decision of the King’s Bench Division in Allingham and another v. Minister of Agriculture and Fisheries. In that British case, the court had applied the maxim “delegatus non potest delegare” to hold that a committee exercising powers under regulation 62(1) could not delegate to its officers the authority to determine which land should be cultivated, rendering the notice issued by the committee ineffective and the alleged non‑compliance not an offence. The Court, however, distinguished that authority because the facts were different. In the Allingham case, a formal delegation of the power to decide the land’s use was attempted, whereas here the Deputy Collector merely sought factual material from his subordinates to inform his own decision. No delegation of the power to hold the enquiry itself occurred. Thus, the precedent did not support the proposition that the Deputy Collector’s actions were invalid, and the Court concluded that the argument founded on the Allingham decision was inapplicable to the present appeal.

The executive committee had instructed a sub‑committee to prepare recommendations for it, and those recommendations were presented to the executive officer, who then issued an order. Lord Goddard, C.J., observed that, based on the record, there was nothing in either the regulations or the governing statute that authorized the executive officer to make such an order. In that earlier case, the appellants argued before the Court that only the executive committee had the authority to decide the matter and that no other body could do so; the Court accepted that argument on the facts before it. The present Court considered whether that decision could support Mr Pathak’s contention in the present appeal. It concluded that the earlier decision was not applicable because there had been no delegation of authority to hold an enquiry. In the present proceedings, the Deputy Collector had not delegated his power to conduct an enquiry; instead, he directed his subordinate officers to gather the material necessary for the enquiry. After the material was collected, the Deputy Collector personally examined it, conducted the enquiry, and determined that the lands had remained fallow and uncultivated for the required period. Accordingly, the Court was satisfied that the English decision relied upon by Mr Pathak did not aid his position in this case. The same contention had been raised before the High Court, as reported in [1948] 1 All E.R. 780, and the High Court had correctly rejected it. Similarly, in Nathubhai Gandabhai Desai v. The State of Bombay and Ors., reported in I.L.R. [1955] Bom. 407, the High Court had rejected a comparable argument, holding that the legislature had given the State Government or its delegated authority full discretion to conduct an enquiry as it deemed appropriate, and that the Court could not question whether the enquiry was properly conducted or whether a different enquiry might have produced better results. This principle has been consistently applied by the Bombay High Court, and the present Court found no reason to doubt its correctness. Consequently, the appeal was allowed, the decree of the High Court was set aside, and the decree of the trial Court was restored. No order as to costs was made.