DEEP NARAYAN SINHA, J. - (1.) THE facts in this case are briefly as follows: There is a Society registered under the Societies Registration Act (Act XXI of 1860) known as 'The Society of Farmers and Rural Industrialists (hereinafter referred to as 'The Society'). The Society approached the Government of West Bengal for the purpose of compulsory acquisition of some land for the establishment of an agricultural1 colony and for creating better living conditions therein. A tentative proposal with a lay -out plan was submitted to the Collector of 24 Parganas. The request was that 58.90 acres of land in villages, Chola and Natagarh within the jurisdiction of Khardah P. S. should be acquired at the costs of the Society. The scheme was later on modified and the area that was to be acquired was scaled down to 28.59 acres. On the 4th of February, 1955 a notification was issued under Section 4 of The West Bengal Land Development and Planning Act 1948 (hereinafter referred to as 'The Act'). A copy of this notification is at page 21 of the paper book. The notification states that the land was needed for the establishment of an agricultural colony and creation of better living conditions in the villages of Ghola and Natagarh. The area to be acquired is stated to be 28.59 acres -It appears that a large portion of this belonged to the petitioner Company, The Bejoy Laxmi Cotton Mills Ltd. It is stated on behalf of the Company that the land had been purchased by the Company for the purpose of erecting factory buildings, roads, quarters for the labourers etc. and that as a result of compulsory acquisition of the greater part of Its lands, that object hss been frustrated. It is stated however on behalf of the respondents that the land that was being acquired was not the land whereon the factory was situated. It is said that in fact there was only a roofless steel structure and a few sheds so far as the factory was concerned, and the land tinder acquisition was 'the land abandoned and unused on the western side of the factory's main land with dilapidated structures'. The notification under Section 4 of the Act was published in the Calcutta Gazette dated 17 -2 -1955. On or about 10 -3 -1955 the substance of the notification was published by the Collector as required by Section 4 of the Act. The Government thereafter directed the Society to prepare a development scheme and submit the same to the Collector to enable him to hear objections under the Rules framed under the Act. On or about 21 -3 -1955 the Society submitted a development scheme and on 18 -4 -1955 the Collector issued notice under Rule 5(2) of the Rules inviting objections by the end of May 1955, against the scheme. About 30 petitions of objection were filed and heard but at that stage the petitioner company did not file any objection. It was sometime in the first week of June, 1955 that the Company filed its objections. Although the objections are belated it is stated that the Collector heard the objections and even made a local inspection. By his report dated 15 -10 -1955 the objections were overruled. The Society was informed that the entire area notified was not needed but that 6.96 acres out of the total notified ,area of 28.59 acres was cancelled and that the rest was going to be acquired and the Society was to pay a sum of Rs. 59,679 and odd as costs of acquisition. On or about the 10th of February, 1956 the Land Planning Committee at its 316th meeting considered the matter and recommended that the development scheme as modified should be approved and a declaration should be made under Section 6 of the Act. The recommendation of the Land Planning Committee together with some office notes was placed before Sri Rai Mohan Samanta who was then acting as the Assistant Secretary of the Government of West Bengali in its Land and Land Revenue Department. Sri Samanta has filed an affidavit affirmed on 12 -8 -1957 and he says there that he approved of the development scheme although no written order was made. On 19 -4 -1956 a letter was written by Sri Samanta as Assistant Secretary to the Secretary of the Society, stating that the detailed scheme and the lay -out plan had been approved by Government and that the Society should submit a draft agreement. On 21 -7 -1956 a declaration was issued under Section 6 of the Act in respect of 21.63 acres of land situate in villages Ghola and Natagarh. On the same day another notification was issued to the effect that a copv of the agreement between the Government and the Society was open for inspection by the public. On 28 -8 -1956 notice to take possession was issued under Rule 8 of the Land Development and Planning Rules (hereinafter referred to as 'Rules'). Under that Rule, as soon as a declaration under Section 6 had been published the Collector may cause a public notice to be given at convenient places in respect of any waste or arable land including any beel, boar, tank or other watery area and the land may he talcen possession of within three days from the date of such notice. In the notice it was stated that possession should be taken on 4 -9 -1956. This Rule was however issued on the 3rd of September, 1956 and the taking of possession has been restrained.
(2.) IN the petition, reference has been made to two other notifications issued under Section 4 of the Act, namely, Notification dated 24 -1 -1956 relating to 8.55 acres of land required for the purpose of settling immigrants, and another dated 28 -2 -1955 in respect of 14.46 acres, required for a similar purpose. I find however that these two notifications have nothing to do with the subject matter of this application, and need not be considered any further. In the petition, several grounds have been talcen but only one has been mossed at the hearing and ft is this: Under Section 5 of the Act, a development scheme is prepared and submitted to the State Government, which has to be sanctioned by it Under Section 6 of the Act, when a development scheme is sanctioned under Section 5, the State Government has further to be satisfied that any land in the notified area for which such scheme had been sanctioned was needed for the purpose of executing such scheme. After it is so satisfied, a declaration may be made to the effect that such land was needed for a public purpose. It is therefore argued that the State Government has to exercise two functions. Firstly, it has to sanction the scheme and secondly it has a duty to be satisfied about certain things mentioned above, before a declaration is made under Section 6. It is argued that in the present case it cannot be said that the Government sanctioned any scheme nor can Government be said to have been satisfied before issuing the declaration under Section 6 of the Act. Originally there was a counter -affidavit filed by Sri B. M. Ganguly, Assistant Secretary to the Land and Land Revenue Department, who merely said that on 21 -7 -1956 the matter was fully considered by Sri Section Banerjee, the Secretary Land and Land Revenue and an order was made by him on behalf of the Government to issue the declaration under Section 6 which was duly published in the Calcutta Gazette on 9 -8 -1956. This was of course quite inadequate information, upon which the point could not be determined. However, the respondents in their affidavits asked for leave to refer to the records and certain records were produced. Directions were then given for filing further affidavits and two affidavits have been filed, one by Sri Section Banerjee, Secretary, Land and Land Revenue Department, Government of West Bengal and another by Sri Rai Mohan Samanta, who was at the relevant time acting as the Assistant Secretary, Government of West Bengal in the said Department. It appears from the affidavits that the statement of Mr. Gangully was not accurate, but that whatever action has been taken in the matter, including the sanctioning of the scheme and being satisfied for the purpose of issuing the declaration under Section 6, was done by Sri Samanta as, an Assistant Secretary in the Land and Land Revenue Department. The question is as to whether Sri Samanta had authority to do so and whether there has been a sufficient compliance with the law. The stand taken by Mr. Gupta on behalf of the petitioner is that the Assistant Secretary had no power to accord sanction or to be satisfied and that in any event such sanction and satisfaction cannot be said to be that of Government and consequently the law has not been satisfied. It is this question which has to be investigated. Article 154 of the Constitution provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. It has been held that a Minister of State is an officer subordinate to the Governor. We next come to Article 166(3) of the Constitution which runs as follows: 'The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in hist discretion.'
(3.) IN this case of course there is no question of the Governor being required to act in his discretion. Under Article 163 of the Constitution, there shall be a Council of Ministers in each State with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions except in so far as he is by or under the Constitution required to exercise his functions or any of them in his own discretion. In exercise of the powers conferred by Article 166(3) of the Constitution, Rules of business have been made by the Governor. At the hearing of this application considerable difficulty was experienced in getting hold of a copy of the Rules of Business, which, though published in printed form by the Government Printing Press, is marked 'Confidential'. It is inexplicable why a publication of such great importance should be marked confidential and he not available to the public. Surely, the rules and regulations under which the executive Government of the country is carried on cannot be kept hidden from the public gaze, in secret archives of the Government. The learned Advocate General frankly confessed that he was unable to explain the reason. However, a copy has ultimately been obtained, and I have ordered it to be marked as Ex. 'A' in this case. The Rules embodied in Ex. 'A' are called the 'West Bengal Rules of Business' and were promulgated on 25 -8 -1951. Rule 4 lays down as follows: 'The business of the Government shall be transacted in the departments specified in the First Schedule, and shall be classified and distributed between those departments as laid down therein'. Under Rule 5. The Governor shall on the advice of the Chief Minister allot among the Ministers the business of the Government by assigning one or more departments to the charge of a Minister.' Under Rule 7, 'The Council of Ministers shall be collectively responsible for all advice tendered to the Governor and all orders issued in the name of the Governor, whether such advice is tendered or such orders are authorised by an individual Minister on a matter appertaining to his department or as the result of discussion at a meeting of the Council or the Cabinet or howsoever otherwise.' The First Schedule to the Rules of Business sets out the various departments, of which there appear to be twenty one in the State of West Bengal. The present matter concerns Department No. 5, namely, the Department of Land and Land Revenue which is a department under the Minister for Land and Land Revenue. The Minister at the relevant time was Rai Harendra Nath Choudhuri. Rules 19 and 20 are of great importance and must be set out: '19. Except as otherwise provided by any other rule, cases shall ordinarily be disposed of by or under the authority of the Minister in charge who may by means of standing orders give such directions . as he thinks fit for the disposal of cases in the Department. Copies o such standing orders shall be sent to the Governor and the Chief Minister: Provided that until such standing orders are made by a Minister, the standing orders which were made under the Rules of Business existing immediately before the commencement of those rules and which were in force in the department in charge of such Minister immediately before such commencement shall, so far, as may be, be deemed to be the standing orders for that department made under this rule. 20. Each Minister shall by means of standing orders arrange with the Secretary of the department what matters or classes of matters are to be brought to his nersonal notice. Copies of such standing orders shall be sent to the Governor and the Chief Minister'. 5. It is said that pursuant to Rules 19 and 20 of the Rules of Business, standing orders have been issued by the Minister in charge in the department of Land and Land Revenue. A cony of the relevant Standing Orders has been produced and filed as of record being marked Ext. 'B'. For the purposes of this case the following Standing Orders are of importance: '11 All matters specified in Rules 12, 13(2), 23, 24, 27, 28, 29(1), 37, 39, 40 and 51 of Rules of Business shall be brought to my notice. 2. Besides the above, the following matters or classes of matters in the Land and Land Revenue Department shall be brought to my notice before the issue of orders: * * * * 18. All cases proposed to be taken up by the Land Planning Committee set up under the Land Development and Planning Act. * * * * (28) All schemes relating to acquisition and settlement of waste lands. (29) All cases relating to land acquisition by companies or industrial concerns or by Government under the Land Acquisition Act before there is notification under Section 4 and agreement under Section 41. '5. The Secretary may permit the Deputy or Assistant Secretaries to dispose of or submit to me for orders such cases or classes of cases as the Secretary may by general or special Order direct with the approval of the Minister -in charge.' It is said that pursuant to the power given under Standing Order No. 5 mentioned above, an order was passed by the Secretary, Land Revenue Department as follows: 'Subject to the undermentioned provisos, cases in the different branches of the department shall bo disposed of, or when so required by any rule or order shall be submitted to the Minister -in -charge, by or under the orders of the Deputy Secretary or the Assistant Secretary, as the case may be, who is according to the office organisation for the time being in force in charge of the matters or classes of matters to which the cases respectively appertain. Provisos. (1) If the officer dealing with the case decides that it is of such importance that it should be submitted to a higher officer in the department, it shall be so submitted. (2) Cases from all branches involving major questions of principles or policy shall be submitted to the Minister -in -charge through the Secretary.' ;