Case: Fonseca Private Limited &amp; Others Vs. L.C. Gupta &amp; Others

unauthorised occupation as defined in Act 40 of 1971 and then it has to record reasons for such satisfaction while making an order of eviction directing that the public premises shall be vacated by all persons who may be in occupation thereof within a specified period. The consequences of any person disobeying such an order are serious as such a person shall be liable to imprisonment or fine or with both under sub-rule (5) of Rule 155. Any order, therefore, made under that rule must strictly comply with the requirement of the rule itself. It is common ground and cannot be disputed that Shri L. C. Gupta, Deputy Secretary, who made the order could do so only if he had the requisite authority under the Government of India (Transaction of Business) Rules, 1961 which were framed in exercise of the powers conferred by clause (3) of Art. 33 of the Constitution. Rule 11 is in the following terms :- "Responsibility of Departmental Secretaries- In each department, the Secretary (which term includes the Special Secretary or Additional Secretary or Joint Secretary in independent charge) shall be the administrative head thereof and shall be responsible for the proper transaction of business and the careful observance of those rules in that department." Rule 3 says, inter alia, that all business allotted to a department under the Government of India (Allocation of Business) Rules, 1961 shall be disposed of by or under the general or special directions of the Minister in charge. 4. According to the appellants Shri L. C. Gupta was not authorised under the Rules of Business to exercise the power of the Central Government. Although in the return filed by the respondents it seems to have been maintained that the order made by Shri L. C. Gupta was by a competent authority but before the High Court at the stage of argument it was conceded that he had no authority under the Act to act for and on behalf of the Central Government. The High Court found that the reasons recorded in the order of Shri L. C. Gupta could not be said to be reasons recorded by the Central Government. The High Court, however, proceeded to look at the contents of a file which was produced and the notings made thereon by the Joint Secretary and the Secretary of the Ministry for the purpose of finding out whether the requirements as to formation of opinion and satisfaction as also the recording of reasons for that satisfaction as required by Rule 155 had been fulfilled. The High Court, after taking into consideration the facts relating to the derivative title of the appellants which had been set up, came to the following conclusion : "The derivative title of the petitioner is therefore of no help and on the date of the order they were in unauthorised occupation of the building for precisely the same reasons which were accepted by the Minister." 5. Mr. A. K. Sen for the appellants has streneously assailed the decision given by the High Court with regard to the title of the appellants relevant for deciding the question whether they were in unauthorised of the premises in question. That according to Mr. Sen was the subject-matter of separate proceedings under Act 40 of 1971. Indeed in those proceedings the learned District Judge of Delhi had, by order dated February 5, 1972, directed the Estate Officer, who had issued a notice to show cause against the order of eviction under Section 4 of that Act, to allow the appellants to lead evidence on the question of title which had been shut out by the Estate Officer. Mr. Sen has maintained that the determination of the question whether the property No. 1 Man Singh Road was public premises as defined by Section 2 (e) of the aforesaid Act and whether the appellants were in unauthorised occupation within the meaning of clause (g) of Section 2 of that Act had to be made in accordance with the procedure prescribed thereby and the same could not be short-circuited or supplanted by the satisfaction of the Central Government while making an order under Rule 155 of the Defence of India Rules. Mr. F. S. Nariman, the learned Additional Solicitor General, on the other hand, contends that Section 37 of the Defence of India Act provides that the provisions of that Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsitent therewith contained in any enactment other than the said Act. According to him the action taken under Rule 155 is quite independent of the proceedings under Act 40 of 1971 (The Public Premises (Eviction of Unauthorised Occupants) Act, 1971). 6. In our judgment it is wholly unnecessary to decide in these proceedings the above question as also certain other contentions which were raised by Mr. Sen relating to the applicability of the rule of natural justice even to proceedings under Rule 155 of the Defence of India Rules and the necessity for communication of the order made under that Rule. Mr. Nariman quite properly chose not to go back on the concession which had been made before the High Court that Shri L. C. Gupta who had made the impugned order under Rule 155 had no authority whatsoever to exercise the powers of the Central Government. It is the Central Government alone that is empowered to make an order under that Rule and under the Rules of Business it would be the Minister or the Officer empowered thereby who alone could exercise those powers in the name of the President, Shri L. C. Gupta admittedly having no such power the order made by him was wholly illegal, ineffective and void.Such an order on the face of it deserved to be quashed and ought to have been quashed on that ground alone by the High Court without deciding the other points some of which are sub judice in proceedings under Act 40 of 1971.

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

Explanation:
1[ds]6. In our judgment it is wholly unnecessary to decide in these proceedings the above question as also certain other contentions which were raised by Mr. Sen relating to the applicability of the rule of natural justice even to proceedings under Rule 155 of the Defence of India Rules and the necessity for communication of the order made under that Rule. Mr. Nariman quite properly chose not to go back on the concession which had been made before the High Court that ShriL. C.Guptawho had made the impugned order under Rule 155 had no authority whatsoever to exercise the powers of the Central Government. It is the Central Government alone that is empowered to make an order under that Rule and under the Rules of Business it would be the Minister or the Officer empowered thereby who alone could exercise those powers in the name of the President, ShriL. C.Guptaadmittedly having no such power the order made by him was wholly illegal, ineffective and void.Such an order on the face of it deserved to be quashed and ought to have been quashed on that ground alone by the High Court without deciding the other points some of which are sub judice in proceedings under Act 40 of 1971.