Shori Lal Jain vs Lt. Governor, Delhi and others

S. Rangarajan, J.—This judgment will dispose of Civil Writ Petitions 48 to 57 of 1972 also. The petitioner in Writ Petition No..1162 of 1971 is one of the three partners of the firm known as Messrs. Jain Optical Industries, carrying on business of optical goods as a tenant in shops Nos. 2395/1, 2397 to 2400, Ballimaran, Delhi. The petitioners in the other petitions are tenants in other shops, all housed in building known as Kothi Nawab Loharowali, Bazar Balimaran, Delhi (Nos. 2376 to 2382, 2395 to 2402), which has been acquired for the purpose of running two Government Girls Higher Secondary Schools. The first and second floors of the building were taken on rent by the Government in May, 1957 at a rent of Rupees 1,150 per month, for running the school. The ground floor of the property comprises 19 shops/godowns, one of which has been rented to the Government. The annual rental income to the owners from these shops/godowns in the ground floor is stated to be Rs. 1,135 per month. The acquisition of the properties of the entire building was suggested by the Directorate of Education on the ground that there was no prospect of the Government constructing Higher Secondary Schools in that area owing to non-availability of a suitable site and there being no possibility of shifting the schools outside the area since the same were meant to serve the minority community (Muslims) which comprises quite a Large population in this densely populated locality. It was pointed out that the Directorate of Education, Delhi Administration had paid, until April, 1968, when the proposal to acquire was made by the Directorate, Rs. 1,51,800 as rent to the owners of the building for the School. The school is being run in two shifts; one in the morning and the other in the afternoon. It was also suggested that it will be profitable for the Government to acquire the entire building with the shops and godowns in the ground floor not only because of the rent it was fetching but also the saving that would result to the Government in not having to pay so much by way of rent.

The notification u/s 4 of the Land Acquisition Act, 1894 (thereinafter called the Act) was made on 11-12-1968. The Land Acquisition Collector made a report, on 11-3-1969, u/s 5-A of the Act that no objections had been received to the notification u/s 4 (1) of the Act and that in the absence of any objection the acquisition proceedings may be processed further. It was further suggested by the Collector that a notification u/s 6 of the Act may be made. Such a notification, u/s 6 of the Act, was issued on 24-4-1969 stating as follows:

Whereas it appears to the Lt. Governor, Delhi that Land is required to be taken by Government at the public expense for a public purpose, namely, for Government school, it is hereby declared "that the land described in the specification below is acquired for the above purpose.

(emphasis added)

The present Writ Petition as well as the connected Writ Petitions have been filed attacking notifications under Sections 4 and 6 of the Act on various grounds. The delay in the filing of the petitions has been explained on the ground that the petitioners came to know about the acquisition only after the notice u/s 9 of the Act was served in July, 1971. The petitions were filed without any loss of time having regard to the time taken to ascertain the true facts. The award having not been yet passed the petitions cannot be defeated on the ground of delay when, as the present discussion will show, the notification u/s 6 is seen to be illegal.

The objection in C. W. 1162 of 1971 is the most comprehensive and the same was argued by Shri P. N. Lekhi, learned counsel for the petitioner, at great length, his arguments being merely adopted in the other petitions. It was contended by Shri Lekhi, inter alia, that there had been no inquiry u/s 5-A of the Act and for that reason itself the acquisition was bad. In the affidavit of return filed by Shri R, N. Puri, Deputy Secretary, Land and Building Department on behalf of Delhi Administration (Respondent 11) it was only mentioned that the allegation an paragraph 35 of the petition concerning the absence of report u/s 5-A was not admitted, it was further stated that "satisfaction" for issuing the said notification was arrived at after due consideration and that no objection u/s 5-A of the Act was received from any quarter. There was a categorical assertion in paragraph 35 of the petition that there was no re port, as contemplated by law, on the basis of which the Lt. Governor (Respondent 1) could express his satisfaction. In view of the above allegation and the manner in which it had been traversed, I directed the concerned land acquisition file to be produced. When it was produced it transpired that there was a report by the Land Acquisition Collector, as noticed above, but an even more serious lacuna was seen to exist on a perusal of the file. By a strange coincidence the file does not appear to have been put up at all before the Lt. Governor for his satisfaction to be expressed u/s 6 of the Land Acquisition Act. Such satisfaction of the ''appropriate Government'' is a condition precedent for the issue of the declaration u/s 6 of the Act. It is not disputed for the purpose of Section 6 the Lt. Governor is the "appropriate Government" and that he has to express his satisfaction before a declaration under that section is made. The file shows that when the above said report was received from the Collector stating that no objection had been received against acquisition a note was put up that permission may be accorded. Only the Secretary had seen the file; the file does not appear to have even been placed before the Lt. Governor at all. In view of this serious lacuna there seems to be no other option but to quash the notification issued in respect of the above building u/s 6 of the Act on 24-4-1969 (copy of which is Annexure 4 to the petition).

The Lt. Governor has to be satisfied: not any of his Secretaries to whom, under Rule 7 of the Rules of Business of Delhi Administration only the power to authenticate notifications made with his approval and consent are delegated. The Lt. Governor himself could not delegate to any of his Secretaries the duty of being satisfied that any particular property requires to be acquired for a public purpose; the satisfaction has to be by him personally. A similar question arose before the House of Lords in Vine v. National Dock Labour Board (1957 AC 488). In that case the Board had lawfully delegated its disciplinary powers over registered dock workers to local boards. The local board, with the approval of the national board, had in turn sub-delegated those powers to a disciplinary committee. In the event Vine was dismissed by that committee. The question was whether the sub-delegation was valid; if it was not Vine''s dismissal was wrongful end ultra vires. The House of Lords pointed out that in deciding whether it is an implied power to delegate one has to consider (a) the nature of the duty, (b) the character of the person on whom the duty is put. As to (a) the House of Lords observed as follows:

Judicial authority normally cannot of course be delegated......... There are, on the other hand, many administrative duties which cannot be delegated. Appointment to an office or position is plainly an administrative act. If under a statute a duty to appoint is placed on the holder of an office, whether under the Crown or not, he would normally have no authority to delegate. He could take advice of course but he could not authorise some one to make the appointment without further reference to him........ I am clear that disciplinary powers, whether judicial or not, cannot be delegated.

The same question also arose earlier in All Ingham v. Minister of Agriculture and Fisheries, 1948 All ER 780. The Minister in that case had1 by regulations lawfully delegated to an agricultural committee his.powers to Rive directions concerning the use for agricultural purposes of land specified in the notice of direction. The committee decided that eight acres of sugar beet should be grown by the occupier of certain land but left it to its executive officer to select the acres to which the direction should apply. The officer consulted a local subcommittee appointed to make recommendations to the committee; acting on its advice he served a notice on the occupier specifying the acres. The notice was held to be invalid as the committee had left to the officer the duty of deciding something they had to decide for themselves.

In the present case it is not even suggested that there has been any such delegation, as a fact, by the Lit. Governor to the Secretary concerned even if there was such delegation it would be invalid.

Since the notification u/s 4 was made as early as in the year 1968 and more than 3 years have elapsed since then (even the notification u/s 6 was more than 3 years old) it is not possible in law to issue any further notification u/s 6 in pursuance of the above said notification u/s 4 of the Act. In view at this lacuna it is realised on all hands that the other questions which have been debated before me at length in this Writ Petition, do not fall for decision as the notification u/s 6 will have to be quashed. If the Government wishes to proceed further with the acquisition of this building it will have to be necessarily by means of a fresh notification u/s 4 of the Act

Shri P. N. Lekhi" however, requested that at least the more important contentions which he put forward against the acquisition may be briefly set out though it has become unnecessary to consider them In the above view of the present case. Shri Lekhi urged. Inter alia, the following: [After setting out the contentions his Lordship proceeded.

It seems proper to repeat that the above contentions of Shri Lekhi have only been set out, at his request, but that no opinion is expressed on all or any of them.

In the circumstances the notification u/s 6 of the Act (copy of which is Annexure 4 to the petition) Is alone quashed. The Writ Petition la accepted to the above extent. There will be no order as to costs.

Order accordingly.