Case: State Of Bombay (Maharashtra) Vs. Shivbalak Gourishanker Dube &amp; Others

The four respondents are the owners of certain agricultural lands in Deokhope in Taluka Palghar in Maharashtra. On the 23rd June, 1951, a notice was served by the appellant, State of Bombay (now Maharashtra), inviting the attention of the respondents to the fact that the agricultural lands of which they were the owners had remained fallow since 1948-49, and intimating to them that the appellant State would resume management of the said lands under S. 65 of the Actunless the respondents took steps to bring them under cultivation in the following agricultural season. The respondents were told that in case they wanted to brink the said lands into cultivation, they should send intimation of their intention to do so within 15 days from the date of the receipt of the notice. It appears that later, an enquiry was made under the orders of the Dy. Collector as a result of which on the 30th December, 1951, he passed an order under S. 65 directing that the lands should be resumed by the Government for cultivation. Thereafter, representations were made by the respondents to the Dy. Collector as a result of which about 8 acres and 30 ghunthas of land were released on the ground that the owners had taken steps to cultivate that portion of the lands in pursuance of the direction given to them by the earlier notice. The order passed by the Dy. Collector in respect of other lands remained unaffected. Thereafter, respondent No. 1 approached the Collector by his application dated 24th March, 1952. This application was, however, rejected. The respondents then moved the Revenue Department, but that effort also failed. That is why the present suit was filed by them on the 23rd December, 1953 for a declaration that the ordered passed by the Dy. Collector on the 30th December, 1951 was illegal and void, and that it could not dispossess them of the lands which belonged to them. As a consequence of the declaration thus claimed by them, the respondents asked for a decree for possession and mesne profits against the appellant.2. The appellant disputed the respondents claim. It urged that the suit as framed was barred under S. 65(1) and S. 85 of the Act. On the merits, the appellant challenged the correctness of the allegations made by the respondents. It was averred by the appellant that the requisite enquiry had been duly and properly made and the impugned order was passed in accordance with the relevant provisions of the Act. According to the appellant, civil court has no jurisdiction to consider the propriety or reasonableness of the conclusion reached by the Dy. Collector before he passed the impugned order.3. The learned trial Judge who framed appropriate issues on these pleadings, in the main upheld the contentions raised by the appellant. In his opinion, the present suit was barred by. Ss. 65(1) and 85 of the Act. He also held that the declaration made by the Dy. Collector was not null and void. The plea raised by the respondents against the validity of the statuts provisions contained in Ss. 65 and 66 of the Act was rejected by him, because he thought that the said sections did not contravene the provisions of Arts. 19 and 31 of the Constitution. The learned Judge also found that the grievance made by the respondents against the propriety or reasonableness of the enquiry made prior to the passing of the impugned order was not justified. In the result, the respondents suit was dismissed.4. The respondents then carried the matter before the High Court by an appeal, and on their behalf three contentions were raised before the High Court. It was first argued that the lands in respect of which the impugned declaration was made were not lands as defined by the Act, and so, the relevant provisions of the Act were inapplicable. It was then urged that before the Government could exercise its powers under S. 65 of the Act, a duty was cast on it to be satisfied that the lands had remained uncultivated for a period of two years before their management was assumed; and this condition had not been satisfied, because delegation by the State Government to subordinate officers of its duty to satisfy itself, or its power to make the declaration, was not justified in law. It was also contended that since the satisfaction had to be by the authority who was competent to make the declaration, he could not delegate any part of his function and duty in that behalf and the said authority had to hold the enquiry himself.5. The High Court has upheld the second of these contentions. It has found that on a fair and reasonable construction of S.65(1) read with S. 83, the appellant could delegate its powers prescribed by S. 65(1), but could not delegate its duty incidental to the exercise of the said power. That is why the decree passed by the trial Court has been reversed on this ground and the respondents suit has been decreed. Consistently with this decision, an appropriate order has been passed in regard to the delivery of possession and the payment of mesne profits as claimed by the respondents. It is against this decree that the appellant has come to this Court by special leave; andthe only point which is raised on its behalf by Mr. Patwardhan is that the view taken by the High Court in regard to the scope and effect of the provisions contained in S. 65(1) read with S. 83 is not well-founded.

Reasoning: 8. If the view taken by the High Court is right it would mean that whereas the State Government can authorise any of the officers belonging to the specified class to exercise its powers under S. 65(1), it must hold the preliminary enquiry itself without delegating the authority to hold such an enquiry to any officer. It is hardly necessary to emphasise that this position is to plainly illogical that it would be unreasonable to recognise the validity of the authority to confer powers while insisting that the conditions precedent for the exercise of the powers are of such a separate and distinct character that in order to satisfy the said conditions, the required enquiry must be held not by any delegate of the State Government but by the State Government itself. In coming to the conclusion that the duty, as distinct from the power, cannot be delegated, the High Court was apparently influenced by the fact that there would be no appeal against the enquiry and the conclusion reached at such an enquiry. We do not propose to express any opinion on this part of the reasoning adopted by the High Court; that will depend upon the construction of S. 86 of the Act. But whatever may be the position in respect of the competence of an appeal, we are satisfied that on a fair and reasonable construction of S. 83 it must be held to authorise the delegation not only of the powers mentioned by it, but also of duties or functions which are incidental to the exercise of the powers and are integrally connected withprocedure does not, in our opinion, involve the question of any delegation at all. The form of the enquiry and ifs mode are entirely in the discretion of the Dy. Collector. Section 65(1) dots not require that the Dy. Collector must himself go to the agricultural fields and enquire on the spot. whether they are lying fallow. He may, if he so desires, record evidence himself, or the recording of the evidence and the actual inspection on the spot can be left to some subordinate officer. The report of such local inspection and the record of the evidence collected in that behalf would be forwarded to the Dy. Collector, and that would be the material in which he would hold the enquiry himself. The enquiry is thus held by the Dy. Collector, though the mechanical work of collecting material has been entrusted to a subordinate revenue officer. In such a case, we do not see how the principle that a delegate cannot delegate comes intodo not see how this case can assist. Mr. Pathaks argument in the appeal before us, because there has been no delegation to hold an enquiry as such. What the Dy. Collector has done in the present proceedings is not to delegate his authority to hold an enquiry, but go get the material necessary for the enquiry collected by his subordinate officers. After the material was Thus collected, he examined the material himself, held the enquiry and came to the conclusion that the lands had remained fallow and uncultivated for the requisite period. We are, therefore, satisfied that the English decision on which Mr. Pathak relies does not assist him in the present case.13. This contention appears to have been raised before the High Court and has been rejected by it and, we think, rightly. In fact, in Nathubhai Gandabhai Desai v. State of Bombay, ILR (1955) Bom 407 a similar contention was raised before the High Court and had been rejected by it. In that case, the High Court has held that inasmuch as the Legislature has left it entirely to the discretion of the State Government or the delegated authority to hold such enquiry as it thinks proper, if an enquiry is held the Court cannot consider as to whether the enquiry was a proper one or whether a better enquiry would not have yielded better results. This view has been consistently followed in the Bombay High Court and we see no reason to doubt itsHigh Court appears to have taken the view that though it was competent to the State Government to delegate its powers under S.65(1), it could not delegate its duty or obligation to make an enquiry, as a result of which the declaration in question can be made. The State Government, says the High Court, can exercise its authority to make a declaration and this authority or power can be delegated under S. 83; but before such authority or power can be exercised, there is an obligation imposed on the State Government to make an enquiry as to whether the agricultural land in question has remained uncultivated or fallow for the period prescribed by the statute, and the obligation or duty to hold such an enquiry which is distinct and separate from the power or authority to make a declaration consequent upon the enquiry, cannot be delegated under S .33. It is common ground that the enquiry was not made by the State government and if the view taken by the High Court is right that the obligation or duty to hold the enquiry cannot be delegated, then the impugned declaration would be open to attack because it had not been preceded by a proper enquiry.