Case Note & Summary
The dispute arose from land acquisition proceedings initiated for the construction of a Telephone Exchange Building in Ellis Bridge, Ahmedabad. The appellant, Jayantilal Amrit Lal Shodhan, challenged notifications issued under Sections 4(1) and 6(1) of the Land Acquisition Act, 1894 by the Commissioner, Baroda Division, State of Gujarat. The Commissioner purported to act under a Presidential notification dated 24-07-1959 issued under Article 258(1) of the Constitution, which had entrusted functions of the Central Government under the Land Acquisition Act to Commissioners of Divisions in the State of Bombay with the consent of the then Government of Bombay. Following the Bombay Reorganisation Act, 1960, the State of Bombay was bifurcated, and the Baroda Division was allotted to the newly formed State of Gujarat. No fresh consent of the Government of Gujarat was obtained for the entrustment of functions to its officers. On 01-09-1960, the Commissioner issued a notification under Section 4(1) declaring that the appellant's land was likely needed for a public purpose. The Additional Special Land Acquisition Officer, appointed by the Commissioner to perform Collector's functions, invited objections under Section 5A. After considering the appellant's objections, the officer submitted a report to the Commissioner, who issued a declaration under Section 6(1) on 11-01-1961. The appellant filed a writ petition in the Gujarat High Court under Articles 226 and 227 seeking to quash the notifications and proceedings. The High Court dismissed the petition on 14-09-1962. The appellant then appealed to the Supreme Court with a certificate of fitness under Articles 132(1) and 133(1)(c). The appellant raised two main contentions. First, that the Presidential notification under Article 258(1) became ineffective after the reorganisation because the consent of the Government of Gujarat was not obtained as required. Second, that the proceeding under Section 5A of the Land Acquisition Act was quasi-judicial, and therefore the authority to make a report could not be delegated by the Commissioner, and the Commissioner could not consider a report made by an officer other than the Collector. The respondents argued that the Presidential notification had the force of law and was saved under Section 87 read with Section 2(d) of the Bombay Reorganisation Act, 1960, and that the enquiry under Section 5A was administrative and could be delegated. The Supreme Court, by a majority of three judges (Gajendragadkar, Shah and Dayal JJ.) held that a notification under Article 258(1) enables the President to do by notification what the legislature could do by legislation, and thus has the force of law. It accordingly held that the notification amended the Land Acquisition Act and was saved as 'law' under Section 87 of the Bombay Reorganisation Act, 1960. The Court also held that the executive power of the Union extends to all matters on which Parliament has power to make law, and that the expression 'save as expressly provided in the Constitution' in Article 73(1) is not limited. On the second issue, the Court held that the enquiry and report by a Collector under Section 5A of the Land Acquisition Act are administrative, not quasi-judicial, and therefore the Commissioner could delegate the function and act on the report. The minority (Subba Rao and Wanchoo JJ.) dissented, holding that the Presidential notification under Article 258(1) was an executive order, not law, and therefore not saved by Section 87; consequently, since the consent of Gujarat was absent, the notifications were invalid. The majority judgment dismissed the appeal and upheld the validity of the acquisition notifications.
Headnote
A) Constitutional Law - Executive Power of Union - Article 258(1) Notification Has Force of Law - Constitution of India, 1950, Article 258(1) - The Presidential notification dated 24-07-1959 entrusting functions under the Land Acquisition Act to Commissioners of Divisions had the force of law and effectively amended the Act. The majority held that Article 258(1) enables the President to do by notification what the legislature could do by legislation, and such notification is saved under Section 87 read with Section 2(d) of the Bombay Reorganisation Act, 1960. Held: The President's notification is not an executive order without legal force; it continues to operate after state reorganisation without fresh consent from Gujarat. B) Constitutional Law - Scope of Article 73(1) - 'Save as expressly provided in the Constitution' - Constitution of India, 1950, Article 73(1) - The executive power of the Union extends to all matters on which Parliament has power to make law, including matters in the Concurrent List. The expression 'save as expressly provided in the Constitution' in the proviso to Article 73(1) is not susceptible of a limited interpretation, and functions not strictly legislative or judicial fall into the residuary executive class. Held: Article 258(1) does not authorise entrustment of powers expressly vested in the President by the Constitution. C) Administrative Law - Nature of Collector's Enquiry under Section 5A - Administrative, Not Quasi-Judicial - Land Acquisition Act, 1894, Section 5A - The enquiry made by the Collector and the report under Section 5A are administrative functions. The Commissioner could therefore appoint the Additional Special Land Acquisition Officer as Collector and act on his report without violating any quasi-judicial requirement. Held: No quasi-judicial character attaches to the report under Section 5A, and delegation is permissible. D) Statutory Interpretation - Bombay Reorganisation Act, 1960 - Saving of Presidential Notification as Law - Bombay Reorganisation Act, 1960, Sections 2(d), 87 - The Presidential notification under Article 258(1) is 'law' within the meaning of Section 2(d) and is saved by Section 87 despite the reorganisation of the State of Bombay into Maharashtra and Gujarat. Held: The Commissioner of Baroda Division had authority to issue acquisition notifications even though the consent of Gujarat Government was not separately obtained.
Issue of Consideration
Whether the President's notification under Article 258(1) of the Constitution remained effective after the Bombay Reorganisation Act, 1960, without fresh consent of the Government of Gujarat, and whether it had the force of law; whether the proceeding under Section 5A of the Land Acquisition Act is quasi-judicial and could be delegated by the Commissioner and considered if made by an officer other than the Collector
Final Decision
The Supreme Court, by majority, dismissed the appeal and upheld the validity of the Presidential notification dated 24-07-1959 and the acquisition notifications dated 01-09-1960 and 11-01-1961. It held that the notification under Article 258(1) had force of law and continued in effect despite the Bombay Reorganisation Act, 1960, without fresh consent of Gujarat, and that the enquiry under Section 5A was administrative and could be delegated. The minority view by Subba Rao and Wanchoo JJ. held that the notification was not law and lacked consent of Gujarat, and would have struck down the notifications.
Law Points
- Presidential notification under Article 258(1) has force of law and amends the relevant Act
- executive power of Union extends to matters on which Parliament can legislate
- 'save as expressly provided in the Constitution' is not susceptible of a limited interpretation
- Collector's enquiry under Section 5A of Land Acquisition Act is administrative not quasi-judicial
