Kanaiyalal Maneklal Chinai and Others vs The State of Gujarat and Others

P.N. Bhagwati, J.—This is a petition for an appropriate direction, order or writ for quashing and setting aside a notification dated 18th

August 1961 purporting to acquire certain land belonging to the petitioners. The principal point involved in the petition raises a question as to the

validity of Section 3(4) of the Bombay Commissioners of Divisions Act, 1957, (hereinafter referred to as the Commissioners'' Act) and two

notifications issued by the State Government under that section, one dated 5th September 1958 and the other dated 22nd September 1958, but

there are also several subsidiary points taken in the petition and in order to understand and appreciate them, it is necessary to set out the facts

giving rise to the petition in some detail.

The petitioners are owners of a certain property known as ""China Baug"" bearing Survey Nos. 348B and 349 situate at Dariapur Kazipur,

Ahmedabad. The said property is situate on the bank of the river Sabarmati and adjoins a vast area of open land appurtenant to the Water Works.

The ashes of Mahatma Gandhi were immersed in the river Sabarmati at a spot near the said property. In or about the beginning of 1957 the

Municipal Corporation conceived the idea of constructing a Samadhi on the bank of the river near the place where the ashes were immersed with a

view to commemorating the solemn occasion of immersion and for that purpose it was suggested that a suitable spot should be selected on the

bank of the river with sufficient open space around for holding and conducting prayer meetings. The subject was discussed between the City

Engineer and the Municipal Corporation and also with certain persons connected with the activities of Mahatma Gandhi and according to the

Municipal Corporation, as a result of these discussions it was found that the site in the compound of the petitioners property would be most

appropriate and suitable for the purpose. It appears that before the decision for selecting the site was reached, the City Engineer and the Municipal

Commissioner had discussion with the first petitioner and his father in regard to the site and in the course of that discussion the first petitioner

intimated to the Municipal Commissioner that he would be only too willing to sell the land for such a laudable purpose as erection of a memorial to

Mahatma Gandhi and requested the Municipal Commissioner to send him a layout plan showing the precise land which the Municipal

Commissioner had in view for erection of the memorial. No such layout plan was, however, sent by the Municipal Commissioner to the petitioners

and without any further discussions or negotiations, a proposal was put forward by the Municipal Commissioner before the Standing Committee

for acquisition of land admeasuring 3, 922 square yards 8 square feet out of Survey Nos. 348B and 349 for the purpose of erecting a memorial to

Mahatma Gandhi. The price of the land was worked out at about Rs. 6 per square yard and the total cost of the proposed acquisition was

estimated at Rs. 31, 380-42 nP. The Standing Committee by a resolution dated 9th October 1956 accepted the proposal and recommended to

the Municipal Corporation that land admeasuring 3, 922 square yards and 8 square feet out of Survey No. 348B and 349 should be acquired for

the purpose of erecting a memorial to Mahatma Gandhi at a total cost of Rs, 31, 380-42 nP. and that appropriate proceedings should be taken for

acquiring the said land under the provisions of the Land Acquisition Act, 1894. The proposal of the Standing Committee was to be considered at a

general meeting of the Municipal Corporation to be held on 1st December 1958 and on reading the agenda of the general meeting the first

petitioner came to know that the Municipal Commissioner was going ahead with the acquisition of the petitioners land and had already obtained the

authority of the Standing Committee in that behalf. The first petitioner, therefore, addressed a letter dated 27th November 1958 to the Municipal

Commissioner pointing out the aforesaid facts and expressing surprise that instead of sending a layout plan to the petitioners and communicating

with them in regard to the purchase of the land by agreement, the Municipal Commissioner had gone ahead and proceeded to obtain the authority

of the Standing Committee to acquire the land and that too without giving them a layout plan of the land. The petitioner also pointed out that he was

astonished to learn that the Municipal Commissioner had estimated the total cost of the land at such a ridiculously low price of Rs. 31, 380-42 nP.

which worked out on the basis of the area of the land being 3, 922 sqare yards and 8 square feet at an absurd price of less than Rs. 8 per square

yard considerably below the prevailing market price of the land. The first petitioner accordingly requested the Municipal Commissioner to defer

consideration of the proposal for acquisition of the land and to settle the matter by negotiation between the parties. No reply was sent to this letter

nor was the request contained in it acceded to and the Municipal Corporation passed a resolution sanctioning the recommendation contained in the

resolution of the Standing Committee dated 9th October 1958. Pursuant to the resolution the Municipal Corporation moved the State Government

and the Commissioner, Ahmedabad Division, issued a notification dated 2nd September 1959 u/s 4 of the Land Acquisition Act, 1894, notifying

that the land specified in the Schedule is likely to be needed for a public purpose, namely, the memorial of Rashtrapita Mahatma Gandhiji. The land

specified in the Schedule to the notification was approximately 3, 428 square yards 3 square feet out of Survey No. 348B and 494 square yards 5

square feet out of Survey No. 349. An inquiry u/s 5A was thereafter held by the Collector as the Special Land Acquisition Officer to inquire into

the objections filed by persons interested in the land. The petitioners filed their objections against the proposed acquisition of the land and the

objections were inquired into by the Collector at this inquiry. In the meantime the State of Bombay was bifurcated into the States of Maharashtra

and Gujarat and the land which formed the subject matter of the notification u/s 4 came within the State of Gujarat. Thereafter on 16th March

1961 an agreement was entered into between the State Government and the Municipal Corporation in connection with the proposed acquisition of

the land and under the agreement the Municipal Corporation bound itself to pay to the State Government the cost of acquisition and all such

charges together with the cost of establishment as might be incurred by the State Government or by any Officer of the State Government in respect

of the acquisition. This was followed by the issue of a notification dated 18th August 1961 by the Commissioner, Baroda Division, u/s 6 of the

Land Acquisition Act, 1894. Since some reliance was placed on behalf of the petitioners on the contents of the notification for the purpose of

making out a case of non-application of mind on the part of the Commissioner, Baroda Division, it will be desirable to reproduce the relevant

portion of the notification. The notification in its material part was in the following terms:

No. LAQ. 1571, - Whereas by Commissioner, Ahmedabad Division''s Notification No. LAQ. 1571 dated 2nd September 1959, it was notified

that lands specified in the Schedule hereto (hereinafter referred to as the said lands) were likely to be needed for the public purpose specified in

Column 4 of the Schedule hereto.

And whereas the Commissioner, Baroda Division, is satisfied after considering the report of the Collector under Sub-section (2) of Section 5-A of

the Land Acquisition Act, 1894 (I of 1894), that the said lands are needed to be acquired at the public expense (or at the expense of a local body

or corporation or company as the case may be) for the public purpose specified in column 4 of the Schedule hereto.

It is hereby declared under the provisions of Section 6 of the said Act that the lands are required for the public purpose specified in column 4 of

the Schedule hereto.

A plan of the said lands can be inspected at the office of the Special Land Acquisition Officer, Ahmedabad.

SCHEDULE

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District, taluka, Approximate area of the Public purpose for which

village. S. No. land required. the lands are needed.

1 2 3 4

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Ahmedabad 348/B/P 3, 562 S.Yds. Memorial of Mahatma

City, 349/P 387"" "" Gandhi.

Dariapur-Kazipur.

-----------------------------------------------------------------------------------

The remaining area of the said lands notified u/s 4 of the Land Acquisition Act under Commissioner, Baroda Division''s Notification No. LAQ.

1571, dated 2nd September 1959 is hereby abandoned.

Since further proceedings for acquisition of the land were threatened to be taken against the petitioners under the notification, the petitioners

preferred the present petition challenging the validity of the notification on various grounds to which we shall presently refer.

The main ground on which the validity of the notification was impugned was that the Commissioner, Baroda Division, who issued the notification

had no authority to issue it. This argument involves a consideration of the provisions of the Commissioners Act and it will therefore be convenient at

this stage to notice the relevant provisions of that Act. Section 1 gives the title of the Act and provides that the Act extends to the whole of the

State of Bombay and it shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint. The State

Government accordingly by a notification fixed 3rd March 1958 as the date on which the Act shall come into force. Section 2 defines certain terms

and expressions used in the Act and the only definition to which it is necessary to refer for the purpose of the present petition is the definition of

Commissioner"" in Clause (a) of Section 2. That clause defines ""Commissioner"" to mean the Commissioner of a division appointed under the law

relating to land revenue as amended by the Schedule to the Act. Then comes Section 3 which is a very important section and though only Sub-

section (4) of that section has been impugned as suffering from the vice of excessive delegation, it is necessary to examine closely the other sub-

sections of that section since they have a considerable bearing on the issue of the validity of Sub-section (4). We will, therefore, reproduce the

whole of Section 3 which is in the following terms:

Amendments to enactments: Power of State Government to confer powers and impose duties on Commissioners under any law: (1) For the

purposes of constituting offices of Commissioners of divisions and conferring powers and imposing duties on Commissioners and for certain other

purposes the enactments specified in column 1 of the Schedule to this Act shall be amended in the manner and to the extent specified in column 2

thereof.

(2) The Commissioner of a division, appointed under the law relating to land revenue as amended by the said Schedule, shall exercise the powers

and discharge the duties conferred and imposed on the Commissioner by any law for the time being in force, including the enactments referred to in

Sub-section (1) as amended by the said Schedule.

(3) The State Government may by notification in the Official Gazette amend or delete any entry in the Schedule for the purpose of imposing any

conditions or restrictions on the exercise of powers and discharge of any conditions or restrictions on the exercise of powers and discharge of

duties conferred or imposed on the Commissioner or withdrawing them, as the case may be, and the Schedule shall be amended accordingly.

(4) The State Government may confer and impose on the Commissioner powers and duties under any other enactment for the time being in force

and for that purpose may, by a notification in the Official Gazette, add to or specify in the Schedule the necessary adaptations and modifications in

that enactment by way of amendment; and thereupon-

(a) every such enactment shall accordingly be amended and have effect subject to the adaptations and modifications so made, and

(b) the Schedule to this Act shall be deemed to be amended by the inclusion therein of the said provision for amending the enactment.

(5) The State Government may at any time in like manner cancel a notification under Sub-section (4), and thereupon the relevant enactment shall

stand unamended by the cancelled notification and the Schedule shall be altered accordingly.

The other sections are not very material and we need not, therefore, refer to them at this stage. It is, however, necessary to refer to the Schedule

for the Schedule specifies the enactments which are amended by Section 3 Sub-section (1) and the precise nature and extent of the amendments

made in those enactments. A cursory glance at the Schedule is sufficient to show that the amendments are made for creating offices of

Commissioners of Divisions and for conferring and imposing on the Commissioners powers and duties of the State Government and some of its

subordinate officers under the enactments specified in the Schedule. We shall have occasion to examine the Schedule in some detail a little later

when we deal with the arguments, of the parties.

Soon after the Commissioners Act was brought into force the State Government in exercise of its powers u/s 3 Sub-section (4) issued a

notification dated 5th September 1958 which was in the following terms:

Bombay Commissioners of Divisions Act (Bom. VIII of 1958), Section 3(4) - Notfn. No. LAQ. 2558/V. In exercise of the powers conferred by

Sub-section (4) of Section 3 of the said Act, the Government of Bombay has conferred and imposed on the Commissioner concerned the powers

and duties under the enactments hereinafter specified and for that purpose has added to and specified in the Schedule to the said Act the following

adaptations and modifications in those enactments by way of amendment, as follows:

The Land Acquisition Act, 1894 (I of 1894), in its application to the Vidarbha Region of the State of Bombay.

In Section 4-

(i) in Sub-section (1), after the words ''appropriate Government'' the words or the Commissioner shall be inserted.

(ii) in Sub-section (2), after the words ''such Government'' the words ''or, as the case may be, by the Commissioner'' shall be inserted.

In Section 5A, in Sub-section (2), after the words ''appropriate Government'' where they occur at two places the words ''or, as the case may

be, of the Commissioner'' shall be inserted.

In Section 6-

(i) in Sub-section (1)-

(a)after the words ''appropriate Government'' the words ''or, as the case may be, the Commissioner"" shall be inserted.

(b)after the words ''its orders'' the words ''or, as the case may be, under the signature of the Commissioner'' shall be inserted.

(ii)In Sub-section (3), after the words ''appropriate Government'' the words ""or, as the case may be, the Commissioner'' shall be inserted.

In Section 7, after the words ''in this behalf the words ''or, as the case may be, the Commissioner'' shall be inserted.

In Section 17-

(i) in Sub-section (1), after the words ''appropriate Government'' the words ''or, the Commissioner'' shall be inserted; (ii) in Sub-section (2)-

(a)after the words ''the State Government'' the words ''or the Commissioner'' shall be inserted.

(b)after the words ''appropriate Government'' the words, ''or, as the case may be, of the Commissioner'' shall be inserted;

(iii) in Sub-section (4)-

(a)after the words ''appropriate Government'' where they occur at two places, the words ''or, as the case may be, of the Commissioner'' shall be

inserted;

(b)for the words ''it does so direct'' the words ''it or he does so direct'' shall be substituted;

By this notification various amendments were made in Sections 4, 5 A, 6 and 17 of the Land Acquisition Act and powers and duties which

belonged to the State Government under those sections were conferred and imposed on the Commissioners to be exercised and performed by

them concurrently with the State Government. It appears that amendments in two other sections of the Land Acquisition Act were left out and the

State Government, therefore, issued another notification dated 22nd September 1958 u/s 3 Sub-section (4) amending those sections and

conferring and imposing on the Commissioners the powers and duties of the State Government under those sections. It was in exercise of the

powers conferred by these two notifications that the Commissioner, Ahmedabad Division, issued the notification dated 2nd September 1959 u/s 4

and the Commissioner, Baroda Division, issued the notification dated 18th August 1961 u/s 6 of the Land Acquisition Act.

Now the argument was that Section 3 Sub-section (4) was ultra vires since it involved excessive delegation of legislative power to the State

Government which was not permissible to the State Legislature under the authority conferred on it under Articles 245 and 246. The petitioners

contended that a wide blanket power to amend any enactment for the time being in force was conferred on the State Government by the State

Legislature without laying down any policy or principle to guide the State Government in the exercise of this power and that the State Legislature

had, therefore, stripped itself of its essential legislative function and vested it in the State Government and this constituted a constitutionally

impermissible delegation. We will presently examine this argument but before we do so, we may point out straightway that if this argument is well-

founded, Section 3 Sub-section (4) would be void and with it would also fall the notifications dated 5th September 1958 and 22nd September

1958 issued by the State Government and in that event the notification dated 18th August 1961 issued by the Commissioner, Baroda Division

would be without authority and would have to be struck down. But in our view this argument is without force and must be rejected. Our reasons

are as follows.

The first answer in limine that was sought to be given by the learned Advocate General to this argument based on excessive delegation of

legislative power was that no delegation of legislative power was involved in Section 3(4) and there was consequently no question of excessive

delegation. He urged that when the State Government issues a notification u/s 3(4) adding to or specifying in the Schedule the necessary

adaptations and modifications in enactment by way of amendment for the purpose of conferring and imposing on the Commissioners powers and

duties under such enactment, an amendment is undoubtedly effected in such enactment, but the amendment is not by the act of the delegate but by

the legislative act of the Legislature itself. By enacting Clause (a), he pointed out, the Legislature itself has declared that on the issue of a notification

by the State Government u/s 3(4), the enactment referred to in the notification shall be amended and shall have effect subject to the adaptations

and modifications specified in the notification and the amendment is thus by force of the legislative declaration contained in Clause (a) and not by

force of the notification issued by the delegate u/s 3(4). The argument was that the amendment being made by the Legislature itself and not by the

delegate, there was no delegation involved in Section 3(4) and the section could not, therefore, be attacked as unconstitutional on the ground of

excessive delegation. In support of this argument the learned Advocate General leaned heavily on the decision of the Supreme Court in

Harishankar Bagla v. The State of Madhya Pradesh (1955) 1 C.R. 380. In that case amongst other things the vires of two sections, namely,

Sections 3 and 6 of the Essential Supplies (Temporary Powers) Act, 1946, was challenged on the ground that each of the sections effected

excessive delegation of legislative power. Section 3 provided that the Central Government, so far as it appears to it to be necessary or expedient

for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by

order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein and Section 6 declared

that any order made u/s 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act or any

instrument having effect by virtue of any enactment other than the Act. The validity of Section 3 was upheld by the Supreme Court on the ground

that the Legislature had clearly laid down the legislative policy, namely, maintenance or increase in supply of essential commodities and securing

equitable distribution and availability at fair prices and afforded sufficient guidance to the Central Government in exercising its powers, u/s 3 and the

delegation was, therefore, not excessive. The attack against the validity of Section 6 was also repelled but on another ground. The Supreme Court

held that there was no delegation involved in the. provisions of Section 6 at all and the question whether the delegation was excessive or not did

not, therefore, arise for consideration. The argument that was urged on behalf of the petitioners against the validity of Section 6 was that the section

in effect conferred power on the Central Government to repeal by implication an existing law and this power could not be delegated since

according to the petitioners the majority view of the Supreme Court in In re Delhi Laws Act (1951) Section C.R. 747 was that to repeal or

abridge an existing law is the exercise of an essential legislative power. The construction on which this submission was based was not accepted by

the Supreme Court but the Supreme Court held that even if it could be said that to the extent of the repugnancy the existing law would stand

repealed by implication by an order made u/s 3, the repeal would not be by any act of the delegate but would be by the legislative act of the

Parliament itself. Mahajan C.J., delivering the judgment of the Court in this connection made the following observations which were strongly relied

on on behalf of the State:

By enacting Section 6 Parliament itself has declared that an order made u/s 3 shall have effect notwithstanding any inconsistency in this order with

any enactment other than this Act. This is not a declaration made by the delegate but the Legislature itself has declared its will that way in Section

The abrogation or the implied repeal is by force of the legislative declaration contained in Section 6 and is not by force of the order made by the

delegate u/s 3. The power of the delegate is only to make an order u/s 3. Once the delegate has made that order its power is exhausted. Section 6

then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any

inconsistency therewith contained in any enactment other than this Act. Parliament being supreme, it certainly could make a law abrogating or

repealing by implication provisions of any pre-existing law and no exception could be taken on the ground of excessive delegation to the Act of the

Parliament itself. There is no delegation involved in the provisions of Section 6 at all and that section could not be held to be unconstitutional on that

ground.

These observations were also relied on by a Division Bench of this Court in Laljimal Premsukhdas and Another Vs. B.K. Kombrabail, Div.

Superintendent, W.R. and Another, and the ratio of these observations was applied to a case arising u/s 43 of the Defence of India Act, 1962,

which was in terms similar to Section 6 of the Essential Supplies (Temporary Powers) Act, 1945. The learned Advocate General contended that

the same reasoning was applicable in the present case too and there was accordingly no delegation of legislative power involved in Section 3(4).

We cannot assent to this argument. There is a fundamental difference between Section 6 of the Essential Supplies (Temporary Powers) Act,

1946, and Section 3(4) of the Commissioners Act and the reasoning of the observations in Harishankar Bagla''s Case can have no application in

Considering the validity of Section 3(4) of the Commissioners Act. The only power delegated to the executive under the Essential Supplies

(Temporary-Powers) Act, 1946, was the power to make an order u/s 3 and the delegation of this power was upheld by the Supreme Court in

Harishankar Bagla''s Case as being within permissible limits since the clear legislative policy or principle was enunciated by the Legislature which

afforded sufficient guidance to the executive in the exercise of this power. Now it is possible that in a given case an order made by the executive in

exercise of delegated power u/s 3 might conflict wholly or in part with an existing law. What should happen in such a case: which law must prevail?

That question was dealt with by the Legislature in Section 6. The Legislature declared in Section 6 that if there was any repugnancy between an

order made u/s 3 and an existing law, the order u/s 3 must prevail against the existing law and to the extent of the repugnancy the existing law must

be regarded as repealed by implication. The repeal was, therefore, clearly by force of the legislative declaration contained in Section 6 and not by

force of the order made by the delegate u/s 3. The power to repeal an existing law was not delegated by the Legislature to the executive. The only

power delegated was the power to make an order u/s 3 and what effect that order should have when it comes into conflict with an existing law was

provided by the Legislature itself in Section 6 and it was, therefore, held that there was no delegation of legislative power involved in Section 6

though there was undoubtedly delegation of legislative power in Section 3. But when we turn to Section 3(4) of the Commissioners Act we find

that the power to amend an existing law is delegated by the Legislature to the executive and the Legislature says in terms clear and explicit that the

action of the executive shall have the effect of amending the existing law. Section 3(4) empowers the State Government to confer and impose on

the Commissioner powers and duties under any enactment for the time being in force (other than the enactments specified in the Schedule) and one

of the modes in which this can be done by the State Government is by amending the enactment. This is the mode sanctioned by the Legislature and

the State Government is authorized to add to or specify in the Schedule the necessary amendment in the enactment for the purpose of conferring

and imposing on the Commissioner powers and duties under the enactment. As soon as the State Government issues a notification adding to or

specifying in the Schedule the relevant amendment in the enactment and expresses its will to so amend the enactment, the Legislature says that the

enactment shall accordingly be amended and have effect subject to the amendment so made by the State Government. The amendment is thus

made by the act of the delegate; of course the authority of the Legislature must be behind the act of the delegate for without legislative sanction the

act of the delegate would be ineffectual; but that does not make it an amendment by the Legislature. The will to amend a particular enactment is to

be that of the executive the power to do so having been delegated to the executive by the Legislature under sec 3(4) and the delegation is made

effective by the Legislature by declaring in Clauses (a) and (b) that as soon as the executive expresses its will by issue of a notification to amend the

enactment, the enactment and the Schedule shall stand amended. It is, therefore, futile to contend that Section 3(4) does not involve any delegation

of legislative power. We shudder to think of the consequences which might result if the view canvassed on behalf of the State were accepted. Such

a view would enable the Legislature to completely set at naught the whole doctrine of excessive delegation of legislative power by simply adopting

the legislative device of empowering the executive to amend or repeal a statute in such manner as it likes and declaring that the act of the executive

shall have force and effect to so amend or repeal the statute. When the Legislature delegates legislative power to the executive, the delegation is

indisputably by force of the legislative declaration and the act of the executive in exercise of the delegated power derives its force and efficacy from

the legislative sanction but merely because theLegislature says in express terms that the act of the executive shall have force and effect to bring

about a result which it is intended to have, it does not negative delegation of legislative power to the executive. Such a declaration by the legislature

really makes the delegation effectual by providing that the act of the delegate shall have force and efficacy. As a matter of fact we find that apart

from the Commissioners Act there are other enactments where a similar declaration is made by the Legislature in cases where there is delegation of

legislative power. To take only one example, let us turn to Section 27 of the Minimum Wages Act. That section empowers the appropriate

Government by a notification to be published in the Official Gazette to add to either part of the Schedule to the Act any employment in respect of

which it is of opinion that minimum rates of wages should be fixed under the Act and on the issue of the notification, the section says that ""the

Schedule shall in its application to the State be deemed to be amended accordingly"". It can hardly be contended that by reason of this latter

provision there is no delegation of legislative power to the appropriate Government u/s 27. The Supreme Court in Edward Mills Co. Ltd. v. The

State of Ajmer (1955) 1 Section C.R. 735 in fact held that there was element of delegation implied in the provisions of Section 27 and proceeded

to uphold the validity of the section on the ground that the delegation made by it was not excessive. We must, therefore, hold that Section 3(4)

effects delegation of legislative power to the State Government and the only question is whether the delegation is within or outside the permissible

limits of constitutional delegation.

Now the question as to whether a Legislature which is not sovereign like the British Parliament but which has limited powers under the written

Constitution can delegate its legislative power to any other authority and if so to what extent first came up for consideration before the Supreme

Court in In re Delhi Laws Act (supra). That was a Presidential Reference under Article 143 and it was heard by a Bench of seven Judges. Each

learned Judge delivered a separate judgment dealing elaborately with different aspects of the question of delegation of legislative power and giving

his opinion as to the limits within which such delegation was permissible under the Constitution. But it is not necessary to refer to these judgments

since what was held by the majority has been explained in numerous subsequent decisions of the Supreme Court. These decisions clearly establish

that the Constitution having conferred a power and imposed a duty on the Legislature to make laws, the legislature cannot abdicate or efface itself.

The Legislature alone must perform the essential legislative function and the essential powers of legislation cannot be delegated. The essential

legislative function consists in the determination or choice of the legislative policy and its formulation as a rule of conduct. The Legislature cannot,

therefore, delegate to an extraneous authority its function of laying down legislative policy in respect of a measure and of formally enacting that

policy into a binding rule of conduct. That must be done by the Legislature itself. Now though the aim of the Legislature be to project its mind as

far as possible into the future and to provide in terms as generally as possible for all contingencies that are likely to arise in the application of the

law, it may not be possible to provide specifically for all cases and the application of the law in many cases may depend on ascertainment of facts

and circumstances which must necessarily be a ""subject of inquiry and determination outside the halls of the Legislature"". It may, therefore, become

necessary for the Legislature to delegate subsidiary or ancillary powers of legislation to delegates of its choice for carrying out the policy laid down

in the enactment and this would be particularly so in modern times when the Legislature is called upon to enact laws to meet the challenge of

complex socio-economic problems. The Legislature must, therefore, necessarily delegate subsidiary or ancillary powers of legislation to the

executive or other authority and leave the executive or such other authority to work out the details within the framework of the policy laid down by

it to suit the varying aspects and needs of a complex situation. The power conferred on the delegate must not, however, be so wide that it is

impossible to discern its limits. There must be definite boundaries within which the power of the delegate is exercisable. Delegation should not be

so indefinite as to amount to an abdication of the legislative function. The Legislature must lay down the legislative policy and the legal principles

which are to control any given cases and must provide a standard to guide the officials to carry out that policy before it delegates its subsidiary

power in that behalf. As observed by Mahajan C.J., in Harishankar Bagla''s case at page 388 of the report:

... the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The

Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the

officials or the body in power to execute the law.

In dealing with challenge to the vires of a statute on the ground of excessive delegation, it is, therefore, necessary to inquire whether the impugned

delegation involves the delegation of an essential legislative function or power or whether the legislature has enunciated its policy and principle and

delegated to the subordinate authority accessory or subordinate powers for the purpose of working out the details within the framework of that

policy and principle. If it is the former, the delegation would be excessive but not so if it is the latter. Vide In re Article 143, Constitution of India

etc., AIR 1951 S.C. 332. Vasantlal Maganbhai Sanjanwala Vs. The State of Bombay and Others,

Mr. I.M. Nanavati who appeared on behalf of the petitioners in some of the petitions which are on Board before us and whom we allowed to

intervene since the question of vires of Section 3(4) is also involved in his petitions, contended that in judging the validity of Section 3(4) there was

no scope for the application of the principle that if there is a legislative policy or principle laid down by the legislature subsidiary or ancillary powers

of legislation can be delegated to an extraneous authority since what was delegated by Section 3(4) was not a subsidiary or ancillary power of

legislation but an essential legislative function and that was constitutionally impermissible. In support of this contention he relied on the decision of

the Supreme Court in In re Delhi Laws Act (supra). Now in this reference made by the President under Article 143, three questions were referred

for the opinion of the Supreme Court of which the last was whether Section 2 of the Part C States (Laws) Act, 1950, or any part thereof was ultra

vires the Parliament. Section 2 empowered the Central Government to extend to any Part C State...or to any part of such State, with such

restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification and by its latter part

provided that provision may be made in any enactment so extended for the repeal or amendment of any corresponding law which might for the

time being be applicable to that Part C State. The validity of this section was in question on the ground that it suffered from the vice of excessive

delegation of legislative power. The majority of the Judges who heard the Reference consisting of Kania C.J., Mahajan J., Mukherjea J., and Bose

J., held that the latter portion of the section which empowered the Central Government to make provision in any enactment extended to a Part C

State for repeal or amendment of any law which might for the time being be in force in that Part C State was ultra vires as reflecting constitutionally

impermissible delegation of legislative power. The view taken by Kania C.J., was that only Parliament can perform the essential legislative

functions; the determination of the legislative policy and its formulation as a rule of conduct must be made by the Legislature and cannot be

delegated by the Legislature to an extraneous authority or other administrative body. He observed ""... the power to delegate legislative functions

generally is not warranted under the Constitution of India at any stage"". Mahajan J., took even a stricter view and held that ""Parliament has no

power to delegate its essential legislative functions to others whether State Legislatures or executive authorites, except, of course, functions which

really in their true nature are ministerial"". Mukherjea J., observed that essential legislative functions cannot be delegated and he explained this by

saying ""The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a

binding rule of conduct"" and added at page 1009 of the report:

But this pre-supposes that there is no existing law on that particular subject actually in force in that territory. If any such law exists and power is

given to repeal or abrogate such laws either in whole or in part and substitute in place of the same other laws which are in force in other areas, it

would certainty amount to an unwarrantable delegation of legislative powers. To repeal or abrogate an existing law is the exercise of an essential

legislative power, and the policy behind such acts must be the policy of the legislature itself. If the legislature invests the executive with the power to

determine as to which of the laws in force in a particular territory are useful or proper and if it is given to that authority to replace any of them by

laws brought from other provinces with such modifications as it thinks proper, that would be to invest the executive with the determination of the

entire legislative policy and not merely of carrying out a policy which the legislature has already laid down.

Bose J., observed at page 1121 of the report that delegation cannot extend to the repealing or altering in essential particulars of laws which are

already in force in any particular area. That is a matter which Parliament alone can handle. Relying on these observations it was contended by Mr.

I.M. Nanavati that since Section 3(4) conferred power on the State Government to amend an enactment for the time being in force for the purpose

of conferring and imposing on the Commissioners powers and duties under such enactment, it was a delegation of an essential legislative function

and the delegation was, therefore, bad. We do not think the contention is well-founded. It cannot be substained either on principle or on the

authority relied on by Mr. I.M. Nanavati.

We have carefully gone through the judgments of the majority Judges but we do not think that they lay down, any absolute proposition that to

repeal or amend an existing law is always in all cases an exercise of essential legislative power which must rest with the Legislature and cannot be

delegated to any extraneous authority. It is no doubt true that these learned Judges held that the latter portion of Section 2 of Part C States (Laws)

Act, 1950, which empowered the executive to repeal or amend any existing law in force in Part C States was ultra vires but it must be

remembered that the power to repeal or amend an existing law conferred by that section was a carte blanche power unguided and uncontrolled by

any legislative policy or principle so that it was left open to the executive to repeal or amend an existing law in such manner and to such extent as it

liked and thereby lay down a policy or principle of its own and formulate it into a binding rule of conduct. This would be indubitably a legislative

function and the latter part of Section 2 of the Part C States (Laws) Act, 1950, therefore, clearly involved delegation of an essential legislative

function by the Legislature to the executive. It was for this reason that the majority Judges struck down the latter part of the section as

unconstitutional and it would not be right to conclude from this decision of the majority Judges that they intended to lay down any absolute or

general proposition that wherever a power to repeal or amend an existing law is given to a delegate, the delegation must necessarily be regarded as

excessive. Of course if a wide blanket power to amend or repeal an existing law is conferred on the delegate, the delegation would be bad

because it would enable the delegate to exercise an essential legislative function, namely, determination of the entire legislative policy and its

formulation, as a rule of conduct which is the exclusive privilege of the Legislature, but if the legislative policy or principle is laid down by the

Legislature before delegating the power to amend or repeal an existing law and the power to amend or repeal is delegated only as a subsidiary or

ancillary power for the purpose of carrying out the legislative policy or principle so that the power delegated is not unconfined or vagrant, the

delegation would certainly be a valid delegation. The test is only this, namely, is there any delegation of an essential legislative function by the

Legislature. If there is, the delegation must be struck down: if not, the delegation must be sustained. The majority decision in Delhi Laws Case

merely applied this test and that decision affords but one illustration of the application of this test. Mukherjea J., undoubtedly made a general

observation that to repeal or abrogate an existing law is the exercise of an essential legislative power but that observation must be read in the

context of the wide uncontrolled power to repeal and amend given u/s 2 of the Part C States (Laws) Act, 1950, which was the section of which

the validity was in question before the learned Judge. As a matter of fact it is clear from the passage from the judgment of the learned Judge which

we have quoted above that the principle on which he founded himself was that power to repeal or abrogate an existing law cannot be given to the

executive where the effect of doing so would be to entrust the executive with the determination of the entire legislative policy and not merely with

carrying out a policy which the legislature has already laid down. It must, therefore, follow consistently with this principle that if the conferment of

the power to repeal or amend an existing law does not invest the executive with the determination of the legislative policy but the executive is

required to exercise the power for the purpose of carrying out a policy which has already been laid down by the legislature, the delegation cannot

be invalid. What we have said above in regard to the observations of Mukherjea J., must apply equally in regard to the observations of Bose J.

These observations made in the context of a section like Section 2 of the Part C State (Laws) Act, 1950, cannot be regarded as laying down any

absolute or general proposition of universal application. In each case we must inquire whether the delegation of the power to repeal or amend an

existing law amounts to delegation of an essential legislative function and the answer to this inquiry would determine the validity of the delegation.

There are also one or two other considerations which weigh with us in reaching this conclusion. When a legislative power is delegated to an

outside authority, the act of the delegate certainly amounts to legislation, but the legislation being not an exercise of an essential legislative function

but an exercise of a subsidiary or ancillary power of legislation guided and controlled by the legislative policy laid down by the legislature is

sustained though made by the delegate and not by the legislature. Now if power to make legislation can be validly conferred on a delegate within

the permissible limits of constitutional delegation, there is no reason why such power should not extend to the making of an amendment in an

existing law. Making of an order like the Cotton Control Order in Harishankar Bagla''s Case is as much legislation as amendment or repealing a

statute and if the former can be done by the delegate, we do not see why the latter cannot be done. There can be no distinction in principle

between one kind of legislation and another so far as delegation of legislative power is concerned. The only question can be whether in effecting

delegation of legislative power, the Legislature has transgressed the constitutional limits. So long as there is no transgression of the constitutional

limits, it should make no difference whether the legislative power delegated is a power to make an independent legislation or a power to repeal or

amend an existing legislation. As a matter of fact we find that in Edward Mills Co. Ltd. v. State of Ajmer (supra) the power conferred on the

appropriate Government u/s 27 of the Minimum Wages Act, 1948, was a power to amend the Schedule by adding other employments in it and the

section was sustained by the Supreme Court as constituting valid delegation of legislative power. Faced with this authority Mr. I.M. Nanavati

contended that it may be that a power may be validly delegated by an enactment to amend that very enactment, but no power can be delegated to

amend another enactment for to do so would be to exercise the essential legislative power. But we do not see what difference it can make in

principle whether the power to amend conferred by an enactment on a delegate is a power to amend that very enactment or the power to amend

another enactment. So long as the legislative policy or principle is laid down and the power to amend is conferred as an ancillary or subsidiary

power to be exercised for the purpose of carrying out that policy or principle, it is immaterial where the power to amend operates and which

provision it seeks to affect. The determination or choice of the legislative policy having been made by the legislature, whatever is done by the

delegate is for the purpose of carrying out that policy and it cannot be said that in acting in exercise of the delegated power, the delegate is laying

down any legislative policy or performing any essential legislative function. And this would be so whether the amendment made by the delegate in

another enactment is an amendment in the unessential features of such enactment or is an amendment in the essential features affecting the legislative

policy of such enactment. In either case, in making the amendment, the delegate would be merely carrying out the legislative policy of the legislature

and not laying down any legislative policy of its own. Even if the effect of the amendment is to interfere with the legislative policy of the other

enactment, such interference would be the result of the determination or choice of the legislative policy by the legislature and not by the delegate

and the principle which requires that the legislative policy must be determined by the legislature alone would not be violated. Strong reliance was

however placed on behalf of the petitioners on the following observations of Bose J. in Rajnarain Singh v. The Chairman Patna Administration

Committee (1955) 1 Section C.R. 290:

an executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential

feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the

opinions set out above: it cannot include a change of policy.

and it was contended on the strength of these observations that no power can be validly delegated to amend an existing or future law in its essential

features so as to effect change in the policy of such law. But these observations, it may be noted, merely restate the law as laid down by the

majority Judges in Delhi Laws Case and for reasons already given by us. while discussing the majority view relating to the validity of the latter

portion of Section 2 of Part C States (Laws) Act, 1950, in Delhi Laws Case, these observations cannot be read as laying down an absolute or

general proposition that power can never be delegated to modify an existing or future law in any essential feature which would include change of

policy. These observations merely give effect to the principle which we have already stated above, namely, that the essential legislative function of

determining the legislative policy or principle must be performed by the legislature alone and cannot be delegated to any other authority. If a carte

blanche power is conferred on the executive authority to modify existing or future laws even to the extent of involving a change of policy without

laying down any legislative policy to guide the executive authority in the exercise of such power, the executive authority would be invested with the

power of determining legislative policy and that would be the exercise of an essential legislative function. The executive authority in such a case, in

exercising its delegated power, would not be carrying out the legislative policy declared by the legislature but would be projecting its own

legislative policy and that would not be permissible. Where however the executive authority is empowered to modify existing or future laws and the

power to modify is not a carte blanche power but the legislative policy involved in the modification is laid down by the legislature itself, the

executive authority making the modification cannot be accused of laying down legislative policy for in making the modification the executive

authority would be merely carrying out the legislative policy of the Legislature. We are, therefore, of the view that if there is legislative policy or

principle laid down by the Legislature and the power to amend the enactment is conferred by the Legislature on the delegate for the purpose of

carrying out that legislative policy or principle, the delegation would be good and valid notwithstanding that the exercise of the power to amend

would effect the legislative policy of another enactment. That would in our opinion be an irrelevant matter since the alteration or change in the

legislative policy in the other enactment would be as a result of legislative determination. It is, therefore, unnecessary to consider whether the

amendment made in the Land Acquisition Act by the State Government by the Notification dated 5th September 1958 issued in exercise of the

power delegated u/s 3(4) is an amendment which effects a departure from the legislative policy of the Land Acquisition Act. Even if it does, it

would still be a valid exercise of a properly delegated power provided the legislative policy or principle is laid down by the Legislature to control

and guide the State Government in the exercise of the delegated power u/s 3(4) and the amendment made is within the four corners of such

legislative policy or principle.

We must, therefore, go back to the question whether there is any legislative policy or principle laid down by the Legislature and the power

delegated to the State Government u/s 3(4) is merely an ancillary or subsidiary power to be exercised within the frame work of that policy or

principle for the purpose of effectuating or carrying out that policy or principle. If there is legislative policy or principle to guide and control the

State Government in the exercise of its power u/s 3(4), the delegation would be a constitutionally valid delegation. But now in the search for

legislative policy or principle where are we to look? What source must be investigated? Is our inquiry to be confined to the provisions of the statute

or can it extend to the legislative history, surrounding circumstances and the objects and reasons which necessitated the enactment? The question is

no longer open to doubt or debate. It is now well-settled by several decisions of the Supreme Court and we need refer only to one of them,

namely, Jyoti Pershad Vs. The Administrator for The Union Territory of Delhi, commonly known as the Slum Clearance Case, that guidance may

be obtained from or afforded by:

(a) the preamble read in the light of the surrounding circumstances which necessitated the legislation taken in conjunction with well-known facts of

which the Court might take judicial notice or of which it is apprised by evidence before it in the form of affidavits. Kathi Raning Rawat v. State of

Saurashtra, 1952 S.C.R. 435, being an instance where guidance was gathered in the manner above indicated;

(b) or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or

comparable situations or generally from the object sought to be achieved by the enactment.

The same view, we find, has been reiterated by the Supreme Court in Mohmedalli and Others Vs. Union of India (UOI) and Another, where Sinha

C.J., as he then was, observed after referring to Hamdard Dawakhana and Another, Kalipada Deb and Another, Lakshman Shripati Itpure @

Lakshman Shripati Impore and A.B. Choudhri and Another Vs. The Union of India (UOI) and Others,

.... the last mentioned case illustrates the rule that the question whether or not a particular piece of legislation suffers from the vice of excessive

delegation must be determined with reference to the facts and circumstances and of the relevant provisions of the statute impugned had been

enacted. If, on a review of all the facts and circumstances and of the relevant provisions of the statute, the Court is in a position to say that the

legislature had clearly indicated the underlying principle of the legislation and laid down criteria and proper standards but had left the application of

those principles and standards to individual cases in the hands of the executive, it cannot be said that there was excessive delegation of powers by

the legislature.

It is, therefore, clear that not only we can but in law we must refer to the legislative history, surrounding circumstances and the background in which

the legislation was enacted, the objects and reasons which led to the passing of the legislation and the preamble and the provisions of the enactment

for the purpose of ascertaining whether any legislative policy or principle is disclosed which would afford guidance to the State Government in the

exercise of its delegated power of legislation u/s 3(4).

Now originally under the Bombay Land Revenue Code, 1879, the State of Bombay was divided into Divisions and there was a Commissioner

for each Division. It appears that it was found unnecessary to continue the office of the Commissioner and the State Legislature, therefore, passed

the Bombay Commissioners (Abolition of Office) Act, 1950, providing for abolition of the office of the Commissioner with effect from the date of

the commencement of the Act, namely, 24th July 1950. Consequent on the abolition, Section 3 provided that all existing laws shall unless the

context otherwise requires be construed as if the reference there to the Commissioner were reference to the State Government or such authority as

the State Government may by general or special order appoint and the proviso to the section declared that unless such general or special order

otherwise directs, the State Government shall have the same power and control over the authority so appointed as it would have had and exercised

over the Commissioner. It will, therefore, be seen that by this Act the office of the Commissioner was abolished and the powers and duties which

were till then being exercised and performed by the Commissioner were transferred to the State Government or to some other authority

subordinate to the State Government. This state of affairs continued until 1st November 1956 when the State Legislature enacted Act No. 45 of

1956 to amend the Bombay Land Revenue Code, 1879. This Act authorized the State Government to appoint a Divisional Officer for each

Division and certain powers and duties were entrusted to the Divisional Officer which the Divisional Officer was required to exercise and discharge

subject to the control of the State Government and subject to the general or special orders of the State Government and those powers and duties

were such as might be conferred or imposed on him by the State Government for the purpose of carrying out the provisions of the Act or any other

law for the time being in force. The Divisional Officer was, therefore, an Officer in charge of a Division who was to exercise such powers and

duties as might be conferred or imposed on him by the State Government and who, in the exercise and performance of those powers and duties,

was subject to the control of the State Government. It appears that soon after this set up was introduced in the State it was found that it was not

adequate since the State had become very large by reason of the addition of territories belonging to other States as a result of the States

Reorganization Act, 1956, and the Commissioners Act was, therefore, enacted by the State Legislature. The objects and reasons which

necessitated the enactment of Commissioners Act were set out in the Statement of Objects and Reasons which was in the following terms:

The increased tempo of development activities particularly community development, land reform measures, and other administrative requirements

of the State such as the need for co-ordination, supervision and decentralisation make it necessary that a supervising, co-ordinating and inspecting

agency of higher status and powers should be established at Divisional headquarters. It has accordingly been considered necessary to appoint

Commissioners in place of the present Divisional Officers and to amend relevant enactments for conferring certain statutory powers and duties

upon the Commissioners. The Act is mainly designed to achieve these objects.

It will be seen from the statement of objects and reasons that the State Legislature felt that by reason of the increased tempo of development

activities particularly community development, land reform measures, and other administrative requirements of the State such as the need for

coordination, supervision and decentralisation, it was necessary that a supervising, co-ordinating and inspecting agency of higher status and powers

should be established at Divisional headquarters. Therefore, for the purpose of achieving that object or policy the Legislature decided to appoint

Commissioners in place of Divisional Officers and to confer and impose certain statutory powers and duties upon the Commissioners. The

Legislature accordingly enacted the Commissioners Act and the way in which the Legislature proceeded was the one usually followed in

legislations of this type. The Legislature first provided for constituting offices of Commissioners by amending the relevant provisions of the Bombay

Land Revenue Code, 1879, and the necessary amendments were made by the enactment of Sub-section (1) of Section 3. The question then was

as to what powers and duties should be conferred and imposed on the Commissioners. Keeping in view the object or policy to achieve which the

enactment was passed, the Legislature applied its mind to certain enactments and amended those enactments for the purpose of conferring and

imposing on Commissioners powers and duties of the State Government and its subordinate officers under those enactments. This too was done

by the Legislature by Sub-section (1) of Section 3 by providing in that sub-section that the enactments specified in Column 1 of the Schedule shall

be amended in the manner and to the extent specified in Column 2 thereof. But the enactments conferring powers and imposing duties on the State

Government and its subordinate officers being many having regard to the complex activities of the State Government in a modern welfare State, the

Legislature could not possibly apply its mind to all the enactments at the time of passing the legislation and decide in respect of which enactments

powers and duties should be conferred and imposed on Commissioners. The question whether powers and duties of the State Government and its

subordinate officers under any particular enactment are necessary to be conferred and imposed on Commissioners for carrying out the legislative

policy or principle would depend upon various facts and circumstances which could best be ascertained by the State Government which would be

in charge of the administration of the affairs of the State. The Legislature, therefore, laid down the legislative policy or principle and left it to the

State Government to decide with reference to the exigencies of the situation and the prevailing conditions whether it is necessary or desirable for

effectuating the legislative policy or principle that powers and duties of the State Government and its officers under any particular enactment should

be conferred and imposed on Commissioners. This provision was made by the legislature obviously in order to carry out effectively the policy and

purpose of the enactment of the Commissioners Act and it is, therefore, not possible to say that in making this provision the Legislature stripped

itself of any essential legislative function and vested it in the State Government.

The petitioners however urged that even if any legislative policy or principle was to be found in the Statement of Objects and Reasons, there

was nothing in it which limited powers and duties transferable to the Commissioner to powers and duties of the State Government and its

subordinate officers and since any powers and duties under any enactment for the time being in force could be transferred to the Commissioner by

the State Government in exercise of the delegated power, the delegation was indefinite and not within discernible or well defined limits or

boundaries and was accordingly invalid. We do not think this contention is well founded. The object or purpose set out in the Statement of Objects

and Reasons for carrying out which the delegated power is to be exercised, itself indicates that the powers and duties contemplated to be

transferred to the Commissioner in exercise of the delegated power are powers and duties of the State Government and its subordinate officers.

Moreover the legislative history of the enactment to which we have referred also points to the same conclusion. The legislative history shows that

prior to 24th July 1950 there was a Commissioner for each Division and when the office of Commissioner was abolished, the powers and duties

which were till then being exercised and performed by the Commissioner were transferred to the State Government or to such other subordinate

authority as might be appointed by the State Government. Thereafter when a Divisional Officer was appointed for each Division, he was to have

such powers and duties as might be conferred or imposed on him by the State Government and again in the exercise and performance of those

power and duties he was to be subject to the control of the State Government and therefore the powers and duties exercisable and performable by

him were naturally the powers and duties of the State Government and its subordinate officers. The Legislature then passed the Commissioners Act

with a view to appointing Commissioners in place of Divisional Officers, the object being to have a supervising, co-ordinating and inspecting

agency of higher status and powers than Divisional Officers for meeting the needs of increased tempo of development activities such as community

development, land reform measures and other administrative requirements of the State such as the need for co-ordination, supervision and

decentralisation. The office of Divisional Officer was thus upgraded into the office of Commissioner and certain statutory powers and duties were

to be conferred and imposed on the Commissioner. Having regard to this legislative history and background it is clear that the powers and duties to

be conferred and imposed on the Commissioner could not be other than powers and duties of the State Government and its subordinate officers.

As a matter of fact when we turn to Section 3 Sub-section (1) and the Schedule we find that even in this provision where the Legislature has itself

made the necessary amendments for the purpose of conferring and imposing powers and duties on the Commissioner, the Legislature has

transferred to the Commissioner only such powers and duties as belonged to the State Government and its subordinate officers. The Legislature

has by enumerating certain specified amendments clearly indicated the policy that the powers and duties which are to be transferred to the

Commissioner are powers and duties of the State Government and its subordinate officers. We are, therefore satisfied that the power to amend

any other enactment for the time being in force conferred on the State Government u/s 3 Sub-section (4) is not an uncontrolled or uncanalised

power but there is legislative policy or principle laid down in the statement of objects and reasons and it is only within the framework of that policy

or principle and for the purpose of effectuating it or carrying it out that the State Government can exercise the delegated power and in exercise of

the delegated power confer and impose on the Commissioner powers and duties of the State Government and its subordinate officers under any

other enactment for the time being in force. Section 3 Sub-section (4) does not, therefore, in our opinion suffer from the vice of excessive

delegation of legislative power.

The petitioners protested against this line of reasoning and contended that this view which we are taking would have a limitative effect on the

plain grammatical meaning of the words used in Sub-section (4) of Section 3 Section 3 Sub-section (4) states that the State Government may

confer and impose on the Commissioner powers and duties under any other enactment for the time being in force. The argument was that the

words used in Section 3 Sub-section (4) are general and refer to any powers and duties under any other enactment for the time being in force and

such powers and duties would include not only powers and duties of the State Government and its subordinate officers but also powers and duties

of any other authority and they may conceivably include even powers and duties of Courts and Judicial Tribunals. The plain language of Sub-

section (4) of Section 3, it was argued, did not warrant the reading of the ""powers and duties"" as referring only to powers and duties of the State

Government and its subordinate officers. If that had been the intention of the Legislature, the petitioners contended, the Legislature would have

expressed itself clearly by using words such as ""powers and duties of the State Government and its subordinate officers"" and the absence of such

words clearly indicated the legislative intent that powers and duties of all authorities were included within the scope and ambit of Section 3 Sub-

section (4). Now the question before us is not really a question as to the true interpretation of Section 3 Sub-section (4). The language of Section 3

Sub-section (4) is undoubtedly wide but the point is whether there is any legislative policy or principle to guide or control the State Government in

the exercise of the power conferred u/s 3 Sub-section (4). If there is a legislative policy or principle, howsoever wide the power of the State

Government u/s 3 Sub-section (4) may appear to be on a plain construction of the language of the section, it would be confined within the four

corners of the legislative policy or principle and would be exercisable only within the framework of such legislative policy or principle. If the power

is exercised for a purpose which is not relatable to the legislative policy or purpose laid down by the Legislature, the exercise of the power would

be liable to be struck down as going beyond what is permitted by the section. When we turn to the decision of the Supreme Court in Edward Mills

Co. Ltd. v. State of Ajmer, (supra) we find that in that case also the power conferred on the appropriate Government u/s 27 was in wide terms

since it permitted the appropriate Government to add to either part of the Schedule any employment in respect of which it was of opinion that

minimum rates of wages should be fixed under the Act but it was held that this delegated power was merely an accessory or subordinate power

conferred on the appropriate Government for the purpose of carrying out effectively the policy underlying the Minimum Wages Act. We must,

therefore, again come back to the same question, namely, whether there is any legislative policy or principle laid down by the Legislature in

enacting the Commissioners Act and on that question we have already expressed our view and we need not reiterate what we have said. The

legislature has clearly expressed its legislative policy that powers and duties of the State Government and its subordinate officers under any

enactment for the time being in force which would include the Land Acquisition Act might be transferred by the State Government to the

Commissioner for effectuating and carrying out the object or policy set out in the Statement of Objects and Reasons and since the legislative

declaration embraces all enactments including the Land Acquisition Act, the State Government can, for the purpose of carrying out the legislative

policy, invest the Commissioner with powers and duties of the State Government under the Land Acquisition Act. This ground of attack against the

validity of the notification dated 5th September 1958 must, therefore, fail.

It was next contended that the notification dated 5th September 1958 was not valid inasmuch as it had not received the assent of the President

as required by Article 31(3) and that in any event it was not operative to effect amendments in the Land Acquisition Act since it had not been

assented to by the President as required under Article 254(2). The argument was that the notifications dated 5th September 1958 and 22nd

September 1958 and particularly the former notification by amending the Land Acquisition Act conferred power on the Commissioner to acquire

land belonging to another by issuing a notification u/s 4, deciding objections lodged u/s 5A and issuing a notification u/s 6 and the declaration of the

Commissioner u/s 6 was made conclusive evidence that the land was needed for a public purpose or for a Company. The amendments introduced

by the notifications, it was argued, provided for compulsory acquisition of land by the Commissioner and being post-constitutional law they could

not have effect unless the notifications having been reserved for the consideration of the President had received his assent under Article 31(3).

Now there is no doubt that a law providing for compulsory acquisition of land made by a State Legislature cannot have effect unless such law

having been reserved for the consideration of the President has received his assent, but in the present case we find that this requirement has been

complied with. The Commissioners Act under which the notifications are issued was reserved for the consideration of the President and the

Presidential assent was received and thereafter it was brought into force. The notifications having been issued in exercise of the power delegated

u/s 3 Sub-section (4) of the Commissioners Act, it was not necessary to have Presidential assent once again for the issue of the notifications. The

Presidential fiat given to the enactment of the Commissioners Act extended to every part of it including Section 3 Sub-section (4) and if any

subordinate legislation was made u/s 3 Sub-section (4), that was covered by the Presidential fiat. This view which we are taking is clearly

supported by a decision of a Division Bench of this Court in Chandulal v. State (1963) 4 G.L.R. 1033 where the question arose whether the Rules

made under an Act required Presidential assent under Article 304 when the Act under which the Rules were made had already received the

Presidential assent. The Division Bench held that it was not necessary to obtain fresh Presidential assent to the Rules and Shelat C.J., speaking on

behalf of the Division Bench obsereved ""when, therefore, a law gives power to the executive to frame rules consistently with that law and

Presidential assent is already obtained for moving such a law under Article 304 Clause (b) of the Constitution, the rules made thereunder

subsequently would not again require the sanction of the President, for it must be deemed that he has given his sanction to the rule-making power

contained in that law"". Likewise in the present case when the President gave his assent to Section 3 Sub-section (4), he must be deemed to have

given his assent to any amendments which might be effected by the State Government in exercise of the delegated power u/s 3 Sub-section (4)

including the amendment of the Land Acquisition Act. This reasoning would also answer the contention of the petitioners that the notifications

issued by the State Government being repugnant to the Land Acquisition Act which was an existing law could not have effect since the notifications

had not received the Presidential assent under Article 254(3).

Before we part with this point it is necessary to notice one other argument advanced by the learned Advocate General in answer to the

contention of the petitioners based on Article 31(3). The argument was that the amendments introduced by the notifications were not post-

constitutional law providing for compulsory acquisition of land and the notifications, therefore, did not require the Presidential assent. It was

contended that the amendments were minor amendments which did not change the substance of the Land Acquisition Act and the notifications

introducing the amendments were, therefore, not such laws as came within the purview of Article 31(3). Support for this contention was sought to

be drawn from the decision of the Supreme Court in Lilavati Bai Vs. The State of Bombay, The question in that case was whether Amending Act

2 of 1950 which extended the life of the Bombay Land Requisition Act, 1948, by two years required the assent of the President under Article

31(3). The Supreme Court held that the Bombay Land Requisition Act, 1948, was a pre-constitutional law and was covered by Article 31(5)(a)

and was, therefore, good law at the date when the Constitution came into force and all that Act 2 of 1950 did was to extend the life of the Act by

two years. The Bombay Land Requisition Act 1948, remained the same law that it was and no change was made in the substance of the Act by

Act 2 of 1950. It was under these circumstances that the Supreme Court held that no Presidential assent was necessary to the enactment of Act 2

of 1950. We do not think that the amendments by the notifications in the present case can be equated with what was done by Act 2 of 1950 in

Lila Vati Bai''s Case (supra). Here we find that the amendments effect a substantial change in the provisions of the Land Acquisition Act. Prior to

the amendments, the power to issue a notification u/s 4, to decide objections u/s 5 A, to arrive at a subjective satisfaction that the land is needed

for a public purpose or for a Company, to issue a notification u/s 6 and to apply the urgency clause u/s 17 was vested exclusively in the State

Government whereas now after the amendments that power is also conferred on the Commissioner. The amendments empower the Commissioner

to acquire the land of another on his being subjectively satisfied that the land is needed for a public purpose or for a Company and his declaration

is made conclusive evidence that the land is so needed. We have now in addition to the State Government which is the highest executive authority

in the State answerable to the elected representatives of the people, another lesser and different kind of authority, namely, the Commissioner who

can exercise the functions and perform the duties in connection with acquisition of land The two authorities are essentially different in nature and

character. The action of the State Government is taken by the Governor aided by his Council of Ministers and under the rules of business each

Minister is primarily responsible for any action concerning his Department. Even if, therefore, any action is taken by the Secretary for acquisition of

land, that action would be the action of the State Government and the Minister in charge of the relevant Department would be primarily responsible

for the same and answerable to the Legislature. Under the amendment, however, power is conferred on the Commissioner as a statutory body and

in the matter of exercise of the power he is not answerable to anyone for discharging his statutory function. It would, therefore, be seen that the

charge that is made by the amendments is a substantial one and in effect the amendments provide for compulsory acquisition of land by the

Commissioner and make the declaration of the Commissioner conclusive. The amendments are, therefore, post-constitutional law coming within

Article 31 (3) and the applicability of Article 31(3) cannot be negatived on that ground. The consequence of our taking this view would clearly be

that in a case where notification u/s 6 has been issued by the Commissioner declaring that the land is needed for a public purpose, the existence of

a public purpose would be justiciable despite the conclusive character attached to the declaration u/s 6(3). Having regard to the provision enacted

in Article 31(2), Section 6(3) would not stand in the way of an aggrieved party agitating before the Court that the acquisition is not for a public

purpose and is, therefore, violative of Article 31(2). See The State of West Bengal Vs. Bela Banerjee and Others, .

That takes us to the next ground of attack urged on behalf of the petitioners. It was contended on behalf of the petitioners that the notification

dated 18th August 1961 issued u/s 6 clearly disclosed internal evidence to show that the Commissioner had not applied his mind in issuing the

notification and that the notification was, therefore, not a valid exercise of power by the Commissioner. Now the proposition cannot be disputed

that if the Commissioner fails to apply his mind, the resultant notification would be bad. The notification can be issued by the Commissioner only if

he is satisfied after considering the report, if any, made u/s 5A(2) that the land in question is needed for a public purpose or for a Company and his

satisfaction is a condition precedent to the issue of the notification. Of course the satisfaction that is required is a subjective satisfaction but the

satisfaction must be there before the notification can be issued and if it appears that there was non-application of mind on the part of the

Commissioner and consequently he could not have arrived at a satisfaction in regard to the matters on which he is required to be satisfied, the

notification would be without authority and void. We must, therefore, examine whether on the facts there was non-application of mind on the part

of the Commissioner in issuing the impugned notification u/s 6. There were three grounds on which the complaint of non-application of mind was

founded. The first ground was that the notification u/s 4 was issued by the Commissioner, Ahmedabad Division, while the Commissioner issuing the

impugned notification referred to the notification u/s 4 as having been issued by the Commissioner, Baroda Division. This is hardly a ground on

which it can be said that the Commissioner was guilty of non-application of mind. The Commissioner correctly referred to the number and date of

the notification u/s 4 but it appears through some inadvertence he wrongly mentioned the notification as having been issued by the Commissioner,

Baroda Division, when in fact it was issued by the Commissioner, Ahmedabad Division. This was obviously an inadvertent inconsequential error

which cannot vitiate the impugned notification. The second ground was that out of the two Survey Numbers 348B and 349, the lands notified u/s 4

were approximately of the area of 3428 square yards 3 square feet and 494 square yards 5 square feet while the area of the lands notified u/s 6

was mentioned as 3, 562 square yards out of Survey No. 348B and 387 square yards out of Survey No. 349 and though the area of the land of

Survey No. 348B was increased the Commissioner stated in the impugned notification that ""the remaining area of the said lands notified u/s 4...is

hereby abandoned"". The argument was that there was no remaining area of the land out of Survey No. 348B which could be abandoned and there

was, therefore, no application of mind on the part of the Commissioner. This argument is also totally devoid of merit and represents a futile attempt

on the part of the petitioners to fish out some fault in the notification where none exists. When the Commissioner stated that the remaining area of

the lands notified u/s 4 is abandoned, obviously he was referring to the totality of the lands and from out of the totality of the lands there was

certainly an area of Survey No. 349 which was not acquired under the impugned notification and was abandoned. The last and more serious

complaint was that the Commissioner had not applied his mind at all to the source from which the funds for the acquisition were to come and this

constituted a serious infirmity in the notification. Now it is true that in regard to the source from which the moneys for the acquisition were to come

the notification mentions all the three sources, namely, ""at the public expense (or at the expense of a local body or corporation or company as the

case may be)"" and it would, therefore, appear that the Commissioner did not apply his mind as to what was the source from which the moneys

were to be provided for the acquisition. The learned Advocate General, however, drew our attention to the statement made in the affidavit of T. B.

Desai, Under-Secretary to the Government, Revenue and Agriculture Department, filed on behalf of the State that the agreement dated 16th

March 1961 made between the State Government and the Municipal Corporation was before the Commissioner when he issued the impugned

notification and contended that this statement clearly showed that the Commissioner must have known from the agreement that the moneys for the

acquisition were going to come out of the Municipal fund and it could not, therefore, be said that the Commissioner did not apply his mind to the

source of the moneys. This contention cannot be accepted for the following reason. The statement relied upon by the learned Advocate General is

not made by the Commissioner but by the Under Secretary to the Government, Revenue and Agriculture Department. It may be that the

agreement was in the record which was before the Commissioner when he issued the impugned notification but from that it does not necessarily

follow that he perused the agreement and informed himself that the moneys for the acquisition were going to be provided by the Municipal

Corporation. It would have been a different matter if the Commissioner himself had made an affidavit and stated that he had read the agreement

and informed himself that the Municipal Corporation was going to provide moneys for the acquisition and then issued the impugned notification. In

that event it might have been possible to say that the Commissioner had applied his mind to the question of source of moneys but through some

inadvertence he had omitted to strike out the irrelevant words in the notification. We must therefore hold on the material before us that the

Commissioner did not apply his mind to the question as to what was the source from which the moneys for the acquisition were to come. But that

does not help the petitioners for in our opinion it does not affect the validity of the impugned notification. It is undoubtedly true that where

acquisition is being made by the Commissioner for a public purpose the moneys for the acquisition must come wholly or partly out of public

revenues or some fund managed or controlled by a local authority and if this condition is not satisfied, the acquisition would be bad. But this

condition is an objective condition and the fulfilment of it is not left to the subjective satisfaction of the Commissioner. What is left to the subjective

satisfaction of the Commissioner is the question whether the land is needed for a public purpose and it is in respect of that matter that the

Commissioner has to apply his mind and arrive at a subjective satisfaction. If the Commissioner issues a notification for acquisition of the land

without applying his mind to the question as to whether the land is needed for a public purpose the acquisition would be bad for it would not be

possible to say in such a case that the Commissioner has arrived at the requisite satisfaction. But the non-application of mind by the Commissioner

to the question as to the source from which the moneys for the acquisition are to be provided would not vitiate the notification for that is not a

matter on which the subjective satisfaction of the Commissioner is made a condition precedent to the valid exercise of the power of acquisition. Of

course if the moneys for the acquisition are not going to come wholly or in part out of public revenues or some fund managed or controlled by a

local authority, the acquisition would be invalid but that would be by reason of non-fulfilment of an objective condition irrespective of the fact

whether the Commissioner has applied his mind to that question or not. We cannot, therefore, accept the contention of the petitioners that the

impugned notification was vitiated by reason of non-application of mind on the part of the Commissioner who issued it.

That takes us to the next question urged on behalf of the petitioners, namely, that the State Government had no power to acquire the land of

the petitioners under the provisions of the Land Acquisition Act for the benefit of the Municipal Corporation since it could not be said that the

Municipal Corporation was unable to acquire the land by agreement u/s 77 of the Bombay Provincial Municipal Corporations Act, 1949,

(hereinafter referred to as the Municipal Act). The argument was that by reason of Section 78 of the Municipal Act the State Government could

take proceedings for acquisition of land on behalf of the Municipal Corporation only if the Municipal Corporation was unable u/s 77 to acquire the

land by agreement and since that condition was not fulfilled in the case of the petitioners'' land, the acquisition purported to be made by the State

Government was invalid. This argument is in our opinion unsound and there are three fallacies underlying it. In the first place it seeks to read

Section 78 as imposing a limitation on the power of the State Government to acquire land under the provisions of the Land Acquisition Act when

such acquisition is intended to be for the benefit of the Municipal Corporation. There is no warrant for reading Section 78 in that manner. Section

78 occurs under the sub-heading ""Acquisition of Property"" and is one of three sections grouped together under that sub-heading. Section 76 which

is the first section in the group confers power on the Municipal Corporation to acquire and hold movable and immovable property. Then comes

Section 77 which deals with acquisition of immovable property by the Municipal Corporation. That section says that whenever it is provided by the

Municipal Act that the Commissioner may acquire or whenever it is necessary or expedient for any purpose of the Municipal Act that the

Municipal Commissioner shall acquire, any immovable property, such property may be acquired by the Municipal Commissioner on behalf of the

Corporation by agreement on such terms and at such rates or prices or at rates or prices not exceeding such maxima as shall be approved by the

Standing Committee either generally for any class of cases or specially in any particular case. If the Municipal Commissioner can acquire the

immovable property in this manner well and good but what is to happen if the Municipal Commissioner is unable to do so. It may also happen that

an immovable property may be required for the purposes of the Municipal Act but the Standing Committee may not approve of the idea of

purchase of the immovable property by agreement and accordingly may not fix the rate or price at which the immovable property should be

purchased or the maximum rate or price within which the Municipal Commissioner may purchase the immovable property but may resolve that the

immovable property be acquired under the provisions of the Land Acquisition Act. In such a case there would be no scope for the applicability of

Section 77 and the question would arise what should be done in the matter. The answer is provided by Section 76, the relevant portion of which is

in the following terms:

(i) Whenever the Commissioner is unable u/s 77 to acquire by agreement any immovable property or any easement affecting any immovable

property vested in the Corporation or whenever any immovable property or any easement affecting any immovable property vested in the

Corporation is required for the purposes of this Act, the Provincial Government may, in its discretion, upon the application of the Commissioner,

made with the approval of the Standing Committee and subject to the other provisions of this Act, order proceedings to be taken for acquiring the

same on behalf of the Corporation, as if such property or easement were land needed for a public purpose within the meaning of the Land

Acquisition Act, 1894.

It will be seen that Section 78 empowers the Municipal Commissioner to move the State Government to acquire an immovable property in two

cases, either when the Commissioner is unable to acquire the immovable property by agreement u/s 77 or the immovable property is required for

the purpose of the Municipal Act and when the Commissioner moves the State Government in the manner prescribed in the section, the State

Government is given the power to adopt proceedings for acquisition of the immovable property as if the immovable property was land needed for

a public purpose. This power conferred u/s 78 is clearly an additional power which can be exercised by the State Government when moved by the

Municipal Commissioners with the approval of the Standing Committee in either of the cases set out in the section. Where the Government

proceeds u/s 78, it is not necessary for the State Government to satisfy itself that the immovable property is required for a public purpose nor is it

necessary for the State Government to comply with the requirements of Part VII of the Land Acquisition Act: All that is required is that the

conditions of Section 78 must be satisfied and if they are satisfied, the machinery of the Land Acquisition Act can be set in motion and the State

Government can proceed to acquire the immovable property as if it were land needed for a public purpose. The power conferred on the State

Government u/s 78 is, therefore, far from being a limitation on the power of the State Government u/s 6, an extension of that power which can be

availed of where the conditions specified in Section 78 are fulfilled. Apart from this consideration it would be contrary to all canons of construction

to read Section 78 of the Municipal Act as curtailing the wide power of the State Government u/s 6 of the Land Acquisition Act. If the intention of

the Legislature were to impose a restriction on the power of the State Government u/s 6 of the Land Acquisition Act when acquisition is intended

to be made for the benefit of the Municipal Corporation, the Legislature would have used clear and explicit language and not left its intention to be

gathered from doubtful implication. The fact that the power of the State Government u/s 6 is not trenched upon by Section 78 would appear

clearly if we take a case where the State Government may be moved to acquire an immovable property not by the Commissioner acting under the

Resolution of the Standing Committee but the Commissioner acting under the resolution of the Municipal Corporation itself. Can it be contended in

such a case that the State Government cannot proceed to acquire the immovable property in exercise of its power u/s 6 merely because it has not

been moved in the manner prescribed by Section 78. The clear and undoubted position appears to be that both the powers, one u/s 6 of the Land

Acquisition Act and the other u/s 78 of the Municipal Act are concurrent powers and neither excludes the other. Secondly it is not possible to read

Section 78 in such a way that the power of the State Government to acquire immovable property under the section can be exercised only if it is

found that the Municipal Commissioner is unable to acquire the immovable property u/s 77. Such a construction would ignore the disjunctive ""or

occurring between the two conditions set out at the commencement of the section and would compel us to read the disjunctive ""or"" as conjunctive

and"" and the consequence of doing so would be that the second condition would be rendered utterly superfluous for the fulfilment of the first

condition would postulate that the immovable property is required for some purpose of the Municipal Act and that would carry with it the fulfilment

of the second condition. We have already discussed the construction of Section 78 and it would appear clearly from that discussion that the two

conditions are disjunctive conditions and if either of them is satisfied, the machinery of the section can be set in motion. Here it could not be

disputed, subject of course to the last contention which we shall presently discuss, that the land of the petitioners was required for a purpose of the

Municipal Act and if that be so, Section 78 could be availed of by the State Government even if it could not be said to be established that the

Municipal Commissioner was unable to acquire the land by agreement u/s 77. We may of course point out that on the material which has been

placed before us in the affidavits it is not possible to say that the Municipal Commissioner was unable to acquire the petitioners land by agreement

u/s 77 but that in our opinion does not make any difference on the view taken by us as to the construction of Section 78. Lastly it may be noted

that u/s 78 it is the State Government which is empowered to adopt proceedings for acquiring immovable property on behalf of the Municipal

Corporation and since Section 78 has not been amended by any notification issued by the State Government in exercise of its powers u/s 3(4) of

the Commissioners Act, the power conferred u/s 78 is not exercisable by the Commissioner. The conditions specified in Section 78 are, therefore,

conditions affecting the power of the State Government and not that of the Commissioner to acquire immovable property on behalf of the

Municipal Corporation and, consequently, even if those conditions are projected in Section 6 which in our opinion, for reasons already given by us,

cannot be done, they may operate as restrictions on the power of the State Government to acquire immovable property u/s 6 but they cannot by

any stretch of argument be construed as in any way limiting the power of the Commissioner to acquire immovable property u/s 6. It is clear beyond

doubt or dispute that the impugned notification does not derive its strength and force from Section 78 nor does it seek its justification under that

section but it is issued in exercise of the power conferred u/s 6 and so far as that section is concerned, there is nothing in it which in any way affects

the power of the Commissioner to issue the impugned notification. This contention urged on behalf of the petitioners must, therefore, be rejected.

That leaves only the last ground of attack against the validity of the impugned notification and that ground of attack was that the purpose for

which the land of the petitioners was sought to be acquired was a purpose which it is beyond the scope and ambit of the Municipal Corporation to

carry out and the impugned notification could not, therefore, be sustained either u/s 6 of the Land Acquisition Act or Section 78 of the Municipal

Act. Now it is clear from the impugned notification and the affidavit of Maneklal L. Patel, Senior Assistant to the Estate and City Improvement

Officer of the Municipal Corporation that the petitioners'' land was required by the Municipal Corporation for the purpose of constructing a

Samadhi of Mahatma Gandhi to commemorate the solemn occasion of immersion of his ashes and if the execution of this purpose is ultra vires the

Municipal Corporation then obviously acquisition could not be made for such purpose. It is elementary that the public purpose for which the

acquisition is made must be capable of execution for otherwise the declaration u/s 6 would be a fraud on the section and in any event if the

acquisition is sought to be justified u/s 78 of the Municipal Act, it must be a purpose under the Municipal Act which the Municipal Corporation can

lawfully carry out. It, therefore, becomes necessary to consider whether this purpose for which acquisition is sought to be made is a purpose within

the competence of the Municipal Corporation. Any discussion of this question must start with the following statement of the law in Halsbury''s

Laws of England, Third Edition, Volume 9 at page 62 which accurately summarizes the legal position in regard to the powers of a Corporation:

The powers of a Corporation created by statute are limited and circumscribed by the statutes which regulate it, and extend no further than is

expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of its incorporation, or may be fairly regarded

as incidental to, or consequential upon, those things which the Legislature has authorised. What the statute does not expressly or impliedly

authorise is to be taken to be prohibited.

This being the principle on which the validity of the action of a Corporation has to be decided, let us examine whether the construction of a

Samadhi of Mahatma Gandhi to commemorate the solemn occasion of immersion of his ashes is a purpose which falls within the express terms of

the Municipal Act or can fairly be regarded as incidental or consequential upon anything expressly authorized by the Municipal Act. Now it was

not seriously contended that there was any express power in the Municipal Act authorizing the Municipal Commissioner to erect a Samadhi of this

type but the argument was that the erection of such a Samadhi could be fairly regarded as incidental to the right and power to give public

instruction which is a matter within the competence of the Municipal Corporation under Clause (42) of Section 66. Reliance was also placed on

Clause (21) of Section 66 and it was contended that in any event the erection of such a Samadhi could be justified under this Clause as it would

further an educational object. This position was, however, contested on behalf of the petitioners who contended that there was no reasonable

relation between the construction of a Samadhi such as the one in the contemplation of the Municipal Corporation and Clauses (21) or (42) of

Section 66. The erection of such a Samadhi. it was argued, could not possibly be regarded as likely to promote public instruction or calculated to

further any educational object. These rival contentions raise a question as to the true interpretation of Clauses (21) and (42) of Section 66.

We will first turn our attention to Clause (42) of Section 66 for that is the clause on which strongest reliance was placed on behalf of the State

and the Municipal Corporation in support of the contention that the construction of a Samadhi of Mahatma Gandhi was within the powers of the

Municipal Corporation. Now so far as this clause is concerned, its true interpretation is no longer a matter of doubt or controversy. It has been

authoritatively construed by a Division Bench of the Bombay High Court in Bombay Municipal Corporation and Another Vs. Ramachandra

Laxman Belosay, This decision being a decision of a Division Bench given prior to the bifurcation of the State is binding upon us and having regard

to what is stated in this decision it is not necessary for us to examine for ourselves the true connotation of the expression ""public instruction

occurring in Clause (42) of Section 66. The question which arose in that case was whether it was within the powers of the Municipal Corporation

to discuss and adopt a resolution expressing deep regret and horror at the execution of one Imre Nagy, a former Prime Minister of Hungary and

his three associates. The Division Bench held that the resolution fell within the ambit of the expression ""likely to promote public instruction"" in

Section 63 Clause (k) which was the section in the Bombay Municipal Corporation Act, 1888, corresponding to Section 66 Clause (42) of our

Municipal Act and the Bombay Municipal Corporation was, therefore, competent to discuss and if the majority of its Councillors so decided, to

pass this resolution. Both the learned Judges who constituted the Division Bench delivered separate judgments and both of them took the view that

the expression ""public instruction"" was an expression of considerable width and amplitude and must be interpreted in the light of varied

requirements and interests of men in a modern democratic society. ""The modern conception of public instruction of public education"", observed

S.T. Desai J., as he then was, ""is not limited to the provision of schools or other educational institutions for traditional scholastic attainments nor is it

confined to subjects on which knowledge was imparted in such institutions in the past. It comprises subjects and matters as varied as the needs of

the individuals that make up a State and permits of freedom in methods and content. ""The learned Judge then proceeded to elaborate this idea in

the following words:

The range of public instruction or education today is as wide as interests of mankind. In a modern democratic country anything which provides

civilizing exposure through which the potential capacities of individuals are developed intellectually, culturally, morally or spiritually are within its

range; and freedom and liberty are recognized under it as fundamental and inalienable rights. Our knowledge like our culture is a synthesis or at

least an aggregation of all these and diverse other elements which throng the educational mould. It seems difficult, therefore, to give, even in the

context of municipal law, a definition exclusive or inclusive which will aptly meet every particular act of public instruction that can be done by a

public body and not fail in some circumstances; and it seems still more difficult to list measures which can or cannot be regarded as likely to

promote public instruction. The method and content of these must necessarily vary and each case would turn on its own facts and other

circumstances relevant to the inquiry and current standards of conformity.... The Court would also have regard to the elasticity inherent in the

language of that section and see that nothing is excluded from the operation of the enactment which on a fair reading of it is within the expansive

range of that provision Imparting of knowledge or information pertaining to the cause of freedom or liberty (liberty of thought, expression, belief,

faith and worship are enshrined in our Constitution) by any appropriate method would, in my judgment, be an act likely to promote public

instruction.

It would, therefore, be seen that the import of the expression ""public instruction"" is a large one and anything which imparts knowledge or instruction

leading to the development of the individual intellectually, culturally, morally or spiritually is within the range of public instruction and moreover in

order to see whether a purpose is within Clause (42) of Section 66 what is required is not that the purpose must necessarily promote public

instruction but must be likely to promote public instruction. If this test formulated by the Division Bench of the Bombay High Court is applied, there

can be no doubt that the construction of a Samadhi of Mahatma Gandhi to commemorate the immersion of his ashes can reasonably be regarded a

measure likely to promote public instruction. Mahatma Gandhi was the Father of the Nation and if a Samadhi to commemorate the immersion of

his ashes is constructed with open ground around it where prayer meetings can be held, there is no doubt that it would be an act which would be a

constant reminder to the people about the lofty ideals pursued by Mahatma Gandhi and instruct and inspire them to follow the illustrious example of

the Father of the Nation and to love their country, to be ready to fight for its freedom, to oppose untruth and injustice and to dedicate their lives in

the service of the country. We are clearly of the view that the erection of a Samadni of Mahatma Gandhi contemplated by the Municipal

Corporation would be a measure likely to promote public instruction and would be clearly within Clause (42) of Section 66. We may point out that

this purpose would also fall within Clause (21) of Section 66 since it has an educative value in the larger sense of that expression as explained in the

decision of the Bombay High Court. It is, therefore, not possible to say that the purpose for which the petitioners'' land is sought to be acquired is

beyond the scope and ambit of the powers of the Municipal Corporation and the contention based on that ground must, therefore, be rejected.

21.1 A subsidiary point was also touched by the learned Counsel appearing on behalf of the petitioners and it was that there were other lands

available to the Municipal Corporation which were equally suitable for the purpose which the Municipal Corporation had in view but despite the

availability of other suitable lands, the Municipal Corporation was wrongfully and deliberately proceeding against the land of the petitioners. This

contention has no relevance to the question of the validity of the impugned notification. The impugned notification cannot be held to be mala fide

merely because there are other suitable lands available to the Municipal Corporation. There may be several suitable lands available to the

Municipal Corporation and the Municipal Corporation may select any one of those lands. Moreover it must be remembered that here it is the

Commissioner who is proceeding to acquire the petitioners'' land and not the Municipal Corporation and there is no oblique motive suggested

against the Commissioner. As a matter of fact there is no suggestion of oblique motive also against the Municipal Corporation and this ground

cannot, therefore, be sustained.

These were all the contentions urged before us and since in our opinion there is no substance in them, the petition fails and is dismissed with

costs. The advocate''s fees will be fixed at Rs, 1,000/-. Mr. M.H. Chhatrapati, learned advocate appearing on behalf of the petitioners, applies for

leave to appeal to the Supreme Court under Article 133(1)(c) of the Constitution. Leave is accordingly granted. The learned Advocate General

also applies for leave to appeal to the Supreme Court under Article 133(1)(c) in so far as our judgment holds that the declaration of the

Commissioner u/s 6 does not debar an aggrieved person from agitating the question of public purpose in a Court of law having regard to Article

31(2) of the Constitution. We do not think that a mere decision on a question arising in a petition can be appealed against by the State under

Article 133(1)(c) when the ultimate judgment is in favour of the State. Leave is, therefore, rejected.