- (1.) BY notification published on 1/09/1960 under S. 4(1) of the Land Acquisition Act 1 of 1894, the Commissioner, Baroda Division, State of Gujarat, exercising functions entrusted to him under a notification dated 24/07/1959, issued by the President, under Art. 258 (1) of the Constitution, notified that a piece of land Part of Final Plot No. 686, Ellis Bridge Town Planning Scheme, belonging to the appellant was likely to be needed for a public purpose viz. construction of a Telephone Exchange Building in Ellis Bridge, Ahmedabad.
(2.) NOTE was thereafter served by the Additional Special Land Acquisition Officer, Ahmedabad (who was appointed by the order of the Commissioner to perform the functions of a Collector), upon the appellant under S. 5A of the Act inviting objections to the acquisition of the land. The appellant filed objections to the proposed acquisition. The Additional Special Land Acquisition Officer submitted his report to the Commissioner, who issued a notification dated 11/01/1961 under S. 6(1)of the Land Acquisition Act, declaring that the land notified under the earlier notification was required for the public purpose specified in Col. 4 of the schedule and that the Additional Special Land Acquisition Officer, Ahmedabad, was appointed under cl. (e) of S. 3 to perform the functions of the Collector for all proceedings to be taken in respect of the land and to take order under S. 7 of the Act for acquisition of the land. The appellant then moved the High Court of Gujarat under Arts. 226 and 227 of the Constitution for a writ of mandamus or other appropriate writ setting aside the notifications dated 1/09/1960 and 11/01/1961, and the proceedings under S. 5A of the Land Acquisition Act, I of 1894, held in respect of the land of the appellant and the decision of the Commissioner, Boroda Division, and for a writ setting aside the notification dated 19/01/1961, under S. 6(1) of the Land Acquisition Act and for interim relief. This petition was dismissed by the High Court. With certificate of fitness under Arts. 132(1) and 133(1)(c) of the Constitution granted by the High Court, this appeal ahs been preferred. In this appeal counsel for the appellant has raised two contentions - (1) That the Commissioner had in the events that had happened no power to issue the notifications under Sections 4 and 6 of the Land Acquisition Act, I of 1894, purporting to act upon the notification issued by the President on 24/07/1959, under Art. 258(1) of the Constitution entrusting the functions of the Union Government relating to acquisition of land to the Commissioners of Divisions in the State of Bombay, because those functions could not be performed after the State of Bombay ceased to exist, and the State of Gujarat came into existence, and the consent of the Government of the latter State to the entrustment of functions to its officers had not been obtained and (2) that the proceeding under S. 5A of the Land Acquisition Act being quasi-judicial, authority to make a report under that section could not be delegated by the Commissioner, and that the report made by the Additional Special Land Acquisition Officer could not in any event be considered by the Commissioner. It may be useful to set out certain statutory provisions in the context of the relevant constitutional set up. By the Constitution as amended by the Seventh Constitutional Amendment Act, 1956 legislative power in respect of acquisition and requisitioning of property is vested under entry 42 in the Concurrent List in the Union Parliament and the State Legislatures. But by virtue of Art. 372, the Land Acquisition Act I of 1894 relating to compulsory acquisition of land for public purposes continues to remain in force. The Land Acquisition Act, I of 1894, authorises the appropriate Government by S. 4(1) to publish the preliminary notification that land in any locality is likely to be needed for any public purposes, and upon the publication of such a notification the officers either generally or specially authorised by the appropriate Government in that behalf are clothed with authority, among other, to enter upon and survey the land and to do all acts necessary to ascertain whether the land is adapted for the purpose, to set out the boundaries by placing marks and cutting trenches etc. The expression "appropriate Government" is defined by cl. (ee) of S. 3 in relation to acquisition of land for the purposes of the Union, the Central Government, and in relation to acquisition of land for any other purposes, the State Government. Any person interested in any land notified under S. 4(1) may within thirty days after the issue of the notification object in writing to the acquisition of the land or of any land in the locality, as the case may be. The Collector must give to the objector an opportunity to be heard and after hearing such objection and making such further inquiry, if any, as he thinks necessary, he has to submit the case to the appropriate Government with a report containing his recommendations on the objections. The decision of the appropriate Government on the report is made final by sub-sec. (2) of S. 5A. The expression "Collector" is defined in S. 3(c) as meaning the Collector of a district, and includes a Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under the Act. By S. 6 the appropriate Government is authorised to make a declaration, if the appropriate Government is satisfied after considering the report under S. 5A sub-sec. (2) that any particular land is needed for a public purpose. The declaration so made is by sub-sec. (3) of S. 6 conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be. By S. 7 the appropriate Government or an officer appointed by the appropriate Government in that behalf, may direct the Collector to take order for the acquisition of the land declared to be needed and the Collector then causes public notice to be given informing the parties concerned that the Government intends to take possession of the land an that claims to compensation for all interests in such land may be made to him. He then holds an inquiry into the nature of the interest of the person claiming compensation, and the objections of the measurement of the land to be acquired and to make an award setting out the true area of the land, the compensation which in his opinion should be allowed for the land, and the apportionment of compensation among persons known or believed to be interested of whose claims he has information; (Ss. 9 and 11). It is clear from this brief resume, that where land is acquired for the purposes of the Central Government, notification under Sections 4 and 6 may be issued by the Central Government and inquiries may be made under Sections 5A and 9 and compensation awarded by an Officer designated by the Act as the Collector, who in the case of acquisition for the purposes of the Union would normally be an officer specially appointed in that behalf by that Government. In exercise of the powers conferred by Art. 258 of the Constitution the President of Indian on 24/07/1959, issued a notification entrusting with the consent of the State Government of Bombay, to the Commissioners of Divisions in the State of Bombay, the functions of the Central Government under the Land Acquisition Act 1 of 1894, in relation to acquisition of land for the purpose of the Union within the limits of the territorial jurisdiction of the said Commissioners subject to the same control by the Government of Bombay as is from time to time exercisable by that Government in relation to acquisition of land for the purpose of the State. At the date of the notification the territory which now forms the State of Gujarat and in which the land in dispute is situate was part of the State of Bombay, but on 1/05/1960 - called the appointed day - a result of the reorganisation of the State of Bombay under the Bombay Reorganisation Act, 1960, out of the territory of that State, two States were carved out- the State of Maharashtra and the State of Gujarat, and the territory covering the Baroda Division was allotted to the State of Gujarat. To ensure a smooth bifurcation of the State of Bombay, provisions relating to the continuance in office of the officers in the same posts which they occupied before the appointed day, and maintaining the territorial extent of laws were enacted. S. 82 of the Bombay Reorganisation Act, 1960 enacted that every person who, immediately before the appointed day, is holding or discharging the duties of any post or office in connection with the affairs of the State of Bombay in any area which on that day falls within the State of Maharashtra or Gujarat shall, subject to an order by a competent authority, continue to hold the same post or office in that State and shall be deemed, as from that day, to have been duly appointed to the post or office by the Government of, or other appropriate authority in that State. By S. 87 provision was made for maintaining the territorial extent of the laws even after the appointed day. It was enacted that provisions of Part II (i.e. provisions relating to the reorganisation of Bombay State into two States) shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law of the State of Bombay shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. By S. 2(d) of the Bombay Reorganisation Act, 1960, the expression "law" includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the State of Bombay.
(3.) THE notification issue by the President of India on 24/07/1959, under Art. 258(1) in terms entrusted certain functions under the Land Acquisition Act to the Commissioners of Divisions in the State of Bombay and it was recited therein that the consent to such entrustment of the State Government of Bombay had been obtained. It is common ground that before the date of the notification issued by the Commissioner, Baroda Division, who was then functioning as an officer of the State of Gujarat, under S. 4 of the Land Acquisition Act no order expressly entrusting the functions of the Union Government under the Land Acquisition Act to any officer in the State of Gujarat was issued by the President, and the authority of the Commissioner to notify for acquisition of the land of the appellant was sought to be derived solely from Sections 82 and 87 of the Bombay Reorganisation Act. The appellant contended that the power exercisable by the President being executive in character, the functions which may be entrusted to a State Government or to an officer of that State under Art. 258(1) are executive, and entrustment of such executive authority not being "law" within the meaning of S. 87 of the Bombay Reorganisation Act, the Commissioners of the new State of Gujarat after 1/05/1960, were incompetent, by virtue of the Presidential notification, to exercise the functions of the Union Government under the Land Acquisition Act. Support to this plea was sought to be derived from the division of Part XI of the Constitution into Ch. I containing to Arts. 245 of 255 dealing with distribution of legislative powers and Ch. II containing Arts. 256 to 261 dealing with "administrative relations between the States", and it was submitted that Art. 258, occurring as it does in Ch. II of Part XI, must he deemed to deal with matters administrative or executive and not legislative. Founding the argument upon the title of Ch. II and the character of the two preceding Arts. 256 and 257 dealing with the exercise of the executive power of the State so as to ensure compliance with the laws made by Parliament, and in a manner so as not to impede or prejudice the exercise of the executive power of the Union which extends to the giving to the State Governments directions as may be necessary for that purpose, it was claimed that Art. 258 deals with the entrustment of executive functions and that entrustment of executive functions by notification issued by the President cannot amount to law, within the meaning of S. 87 of the Bombay Reorganisation Act. The plea about the placing of Art. 258 in Ch. II and the character of the two preceding Articles as indicative of the character of the power conferred by Art. 258(1) is not at all decisive; for cl. (2) of Art. 258, and cl. (3) of Art. 261, which occur in Ch. II, deal with matters legislative and judicial. At this stage Art. 258 may be set out : "(1) Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends. (2) A law made by Parliament which applies in any State may, notwithstandianding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof. (3) Where by virtue of this article powers and duties have been conferred or imposed upon a State or officers or authorities thereof, there shall be paid by the Government of India to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of any extra costs of administration incurred by the State in connection with the exercise of those powers of duties." By the first clause, the President is authorised to entrust with the consent of the State Government, to that Government, or its officers functions in relation to an matter to which the executive power of the Union extends. Clause (2) deals with the exercise of legislative authority of Parliament in matters exclusively within its competence to confer powers and impose duties upon the State or officers and authorities thereof. Clause (3) provides for payment of sums determined in the manner prescribed by the Union for the burden of extra costs incurred by the State in connection with the performance of duties and exercise of powers conferred or imposed by virtue of Art. 258. ;