Case: Sidhartha Sarawgi Vs. Board Of Trustees For Port Of Kolkata&amp;Or

Central Government. (2) Subject to the provisions of sub- section (1), the form and manner in which any contract shall be made under this Act shall be such as may be prescribed by regulations made in this behalf. (3) No contract which is not made in accordance with the provisions of this Act and the regulations made thereunder shall be binding on the Board. 14. In exercise of the power under Section 21 on delegation of powers, the Board of the Kolkata Port Trust passed Resolution No. 82 dated 26.05.1988 delegating the power to terminate any lease on the Chairman. The Chairman was also authorized by the said Resolution to issue ejectment notices. The text of the Resolution reads as follows: .. Resolution No. 82- Resolved to sanction the proposal for delegation of powers to the Chairman by invocation of section 21(a) of the Major Port Trust Act, 1963, the power to terminate leases sanctioned by the Trustees and to authorizing him to issue ejectment notices, subject to the sanction of the Government. 15. It is the contention of the petitioners that the power to terminate the lease having been specifically conferred on the Chairman, the steps now taken by the Land Manager by issuing the impugned notices for eviction, are clearly without jurisdiction and, hence, illegal and inoperative. On behalf of the Board of Kolkata Port Trust, it is contended that the decision to terminate the lease has actually been taken by the Chairman and the issuance of notice of termination in furtherance of the decision taken by the Chairman alone, has been delegated to the Land Manager. Our attention is also invited to Office Order No. 6480/3/0 dated 22.01.1990, which reads as under: - CALCUTTA PORT TRUST No. 6480/3/0 January 22, 1990 OFFICE ORDER Henceforth ejectment (sic) notices in respect of leases determined with my approval may be signed by any one of the undernoted officers: Calcutta 1) Deputy Chairman (Calcutta) 2) Land Manager Haldia 1) Deputy Chairman (Haldia) 2) General Manager (Mas) 3) Manager (I&C.F) 16. The power that is delegated to the Chairman as per Resolution No. 82 is the power to terminate a lease. The decision to terminate has been taken by the Chairman only and there is no dispute in that regard. In implementation of the decision thus taken by the Chairman to terminate the leases, the Chairman has authorized the Land Manager to issue the ejectment notices. The issuance of such notices is a mere ministerial act for the implementation of a decision already taken by the Chairman as delegated by the Board. The Chairman having duly authorized the Land Manager in that regard, it cannot be said that the ejectment notice issued by the Land Manager is without jurisdiction. It is not a case of sub-delegation. It is merely a ministerial exercise of issuance of a notice in implementation of the decision, as per the specific authorization in that regard. 17. The situation can be viewed from another angle as well. Section 21 of The General Clauses Act, 1897 provides that power to issue would include power to add, amend, vary or rescind. The provision reads as follows: 21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.-Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. 18. Admittedly, in the case of the petitioners, the lease deed has been executed by the Land Manager. The execution of the lease deed is as per the decision by the competent authority. If that be so, the lease can be terminated by the same authority who executed the lease deed, after a decision has been made in that regard by the competent authority. In P. Saibaba Rao S/o Amruth Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and Dr. N. Sudhakar Rao S/o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and Ors. [Election Petition Nos. 1 and 3 of 2004, Judgment dated 30.08.2007] High Court of Andhra Pradesh considered the situation of termination of a contract. The contention was that the Superintendent Engineer was not competent to terminate the contract in terms of the guidelines. His authority was only to execute the contract. Negating the same, it was held as follows: It is very interesting to notice that entry 5(b) of the Government order as above speaks of instruments relating to execution of works including Highways. The officer authorized to execute these instruments among others is SE. Chapter II of PWD Code deals with, Works. It contains paragraphs 88 to 224. Nowhere has it mentioned any authority, who is conferred with power to terminate/cancel the contract entered into by SE as per Paragraph 159 of PWD Code read with executive instructions. Petitioners have failed to bring any evidence in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965, it was clarified that SE is competent to execute contracts and piece work agreements upto the limit of tenders accepted by the competent authority regardless of whether they were accepted by SE and irrespective of restrictions imposed on the powers of SE in the matter of acceptance of contract. This means that SE is competent to enter into contract and also for terminating/ closing/cancelling the contract. The power to enter into contracts or the authorisation to execute instruments also includes the power to execute contracts or instruments cancelling a contract. It may also be noticed that under preliminary specification Nos. 7 and 8 of APSS, SE is competent to alter the standard specifications for a particular contract. Thus authorization given to SE under G.O.Ms. No. 1632, dated 24.10.1958, is all pervasive and the same cannot be interpreted in a restrictive manner. We respectfully endorse the legal principle.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]2. Delegation is the act of making or commissioning a delegate. It generally means parting of powers by the person who grants the delegation and conferring of an authority to do things which otherwise that person would have to do himself. Delegation is defined in Blacks Law Dictionary as the act of entrusting another with authority by empowering another to act as an agent or representative. In P. Ramanatha Aiyars, The Law Lexicon, delegation is the act of making or commissioning a delegate. Delegation generally means parting of powers by the person who grants the delegation, but it also means conferring of an authority to do things which otherwise that person would have to do himself. Justice Mathew in Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. v. The Assistant Commissioner of Sales Tax and Others [(1974) 4 SCC 98] , has succinctly discussed the concept of delegation. Paragraph 37 reads as follows:37. … Delegation is not the complete handing over or transference of a power from one person or body of persons to another. Delegation may be defined as the entrusting, by a person or body of persons, of the exercise of a power residing in that person or body of persons, to another person or body of persons, with complete power of revocation or amendment remaining in the grantor or delegator. It is important to grasp the implications of this, for, much confusion of thought has unfortunately resulted from assuming that delegation involves or may involve, the complete abdication or abrogation of a power. This is precluded by the definition. Delegation often involves the granting of discretionary authority to another, but such authority is purely derivative. The ultimate power always remains in the delegator and is never renounced5. The issue was considered by this Court in Jamal Uddin Ahmad v. Abu Saleh Najmuddin and Another [(2003) 4 SCC 257] in the context of the procedure for filing of the election petitions under Section 81 of the Representation of Peoples Act, 1951. It was held that the ministerial or administrative functions of the authority on whom the powers are conferred by the statute can be exercised by the authorized officers. It was held that:13. The functions discharged by a High Court can be divided broadly into judicial and administrative functions. The judicial functions are to be discharged essentially by the Judges as per the Rules of the Court and cannot be delegated. However, administrative functions need not necessarily be discharged by the Judges by themselves, whether individually or collectively or in a group of two or more, and may be delegated or entrusted by authorization to subordinates unless there be some rule of law restraining such delegation or authorisation. Every High Court consists of some administrative and ministerial staff which is as much a part of the High Court as an institution and is meant to be entrusted with the responsibility of discharging administrative and ministerial functions. There can be delegation as also there can be authorization in favour of the Registry and the officials therein by empowering or entrusting them with authority or by permitting a few things to be done by them for and on behalf of the Court so as to aid the Judges in discharge of their judicial functioning. Authorization may take the form of formal conferral or sanction or may be by way of approval or countenance. Such delegation or authorization is not a matter of mere convenience but a necessity at times. The Judges are already overburdened with the task of performing judicial functions and the constraints on their time and energy are so demanding that it is in public interest to allow them to devote time and energy as much as possible in discharging their judicial functions, relieving them of the need for diverting their limited resources of time and energy to such administrative or ministerial functions, which, on any principle of propriety, logic, or necessity are not required necessarily to be performed by the Judges. Receiving a cause or a document and making it presentable to a Judge for the purpose of hearing or trial and many a functions postdecision, which functions are administrative and ministerial in nature, can be and are generally entrusted or made over to be discharged by the staff of the High Court, often by making a provision in the Rules or under the orders of the Chief Justice or by issuing practice directions, and at times, in the absence of rules, by sheer practice. The practice gathers the strength of law and the older the practice the greater is the strength…7. It would also be useful in this context to refer to the decision of this Court in Barium Chemicals Limited and Another v. The Company Law Board and Another [AIR 1967 SC 295 ] wherein it is held at paragraph 36 as follows:…the maxim delegatus non potest delegare must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted8. The Constitution confers power and imposes duty on the Legislature to make laws and the said functions cannot be delegated by the Legislature to the executive. The Legislature is constitutionally required to keep in its own hands the essential legislative functions which consist of the determination of legislative policy and its formulation as a binding rule of conduct. After the performance of the essential legislative function by the Legislature and laying the guiding policy, the Legislature may delegate to the executive or administrative authority, any ancillary or subordinate powers that are necessary for giving effect to the policy and purposes of the enactment. In construing the scope and extent of delegated power, the difference between the essential andl functions of the delegate should also be borne in mind. While there cannot ben of any essential functions, in order to achieve the intended object of the delegation, thed to be performed under the authority and supervision of the delegate9. Sometimes, in the plenary legislation itself, the lawmakers may provide for such. That is what we see under Section 21 and 34 of the Major Port Trusts Act, 1963, which we shall be discussing in more detail at a later part of this judgment16. The power that is delegated to the Chairman as per Resolution No. 82 is the power to terminate a lease. The decision to terminate has been taken by the Chairman only and there is no dispute in that regard. In implementation of the decision thus taken by the Chairman to terminate the leases, the Chairman has authorized the Land Manager to issue the ejectment notices. The issuance of such notices is a mere ministerial act for the implementation of a decision already taken by the Chairman as delegated by the Board. The Chairman having duly authorized the Land Manager in that regard, it cannot be said that the ejectment notice issued by the Land Manager is without jurisdiction. It is not a case of. It is merely a ministerial exercise of issuance of a notice in implementation of the decision, as per the specific authorization in that regard18. Admittedly, in the case of the petitioners, the lease deed has been executed by the Land Manager. The execution of the lease deed is as per the decision by the competent authority. If that be so, the lease can be terminated by the same authority who executed the lease deed, after a decision has been made in that regard by the competent authority. In P. Saibaba Rao S/o Amruth Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and Dr. N. Sudhakar Rao S/o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and Ors. [Election Petition Nos. 1 and 3 of 2004, Judgment dated 30.08.2007] High Court of Andhra Pradesh considered the situation of termination of a contract. The contention was that the Superintendent Engineer was not competent to terminate the contract in terms of the guidelines. His authority was only to execute the contractNegating the same, it was held as follows:It is very interesting to notice that entry 5(b) of the Government order as above speaks of instruments relating to execution of works including Highways. The officer authorized to execute these instruments among others is SE. Chapter II of PWD Code deals with, Works. It contains paragraphs 88 to 224. Nowhere has it mentioned any authority, who is conferred with power to terminate/cancel the contract entered into by SE as per Paragraph 159 of PWD Code read with executive instructions. Petitioners have failed to bring any evidence in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965, it was clarified that SE is competent to execute contracts and piece work agreements upto the limit of tenders accepted by the competent authority regardless of whether they were accepted by SE and irrespective of restrictions imposed on the powers of SE in the matter of acceptance of contract. This means that SE is competent to enter into contract and also for terminating/ closing/cancelling the contract. The power to enter into contracts or the authorisation to execute instruments also includes the power to execute contracts or instruments cancelling a contract. It may also be noticed that under preliminary specification Nos. 7 and 8 of APSS, SE is competent to alter the standard specifications for a particular contract. Thus authorization given to SE under G.O.Ms. No. 1632, dated 24.10.1958, is all pervasive and the same cannot be interpreted in a restrictive manner