Delegatus Non Potest Delegare: A delegate has no power to delegate,
is a well-settled principle. - Powers of Land Manger of the Port trust - lessee did unauthorised constructions and also sublet the same with out permission - Eject notice was issued - Challenged on the ground the land manger has no authority to issue - single judge allowed the writ - D.B. reversed the order of single judge and allowed the writ appeal - Apex court held that We do not find any legal infirmity in the impugned notices issued by the Land Manager of the Kolkata Port Trust, as noted by the Division Bench of the Calcutta High Court, in the impugned judgment. The power is exercised only as duly authorized by the Chairman. The Land Manager is also otherwise competent to issue notices after due decision has been taken in that regard by the competent authority since he is the one who executed the lease deed. There is no merit in these Petitions.=
Delegatus Non Potest Delegare: A delegate has no power to delegate,
is a well-settled principle.
In P. Ramanatha Aiyar’s, The Law
Lexicon, “delegation is the act of making or commissioning a delegate.
Delegation generally means parting of powers by the person who grants the
delegation, but it also means conferring of an authority to do things which
otherwise that person would have to do himself”.
The main
contention is that the ejectment notice issued by the Land Manager is
illegal and without jurisdiction as he is not competent to issue such
ejectment notices. In the case of Siddhartha Sarawgi, the leases were
terminated during the subsistence of the renewed period of 30 years, on the
ground of sub-letting without consent of the Kolkata Port Trust. In his
case also, the ejectment notices were issued by the Land Manager and,
hence, it is contended that there can be no eviction on the basis of
ejectment notice issued by a person who is not competent to do so, the same
being without jurisdiction. The said ejectment notices were challenged by
both the petitioners before the Calcutta High Court. In the case of
Universal Autocrafts Private Limited, the learned Single Judge of Calcutta
High Court allowed the writ petition holding that the Land Manager was not
competent to issue the ejectment notice. In the writ petition filed by
Sidhartha Sarawgi, the learned Single Judge of the Calcutta High Court
found a conflict between two earlier decisions and referred the matter to a
Division Bench. The Division Bench vide common judgment dated 28.01.2003
held in favour of the Kolkata Port Trust in the case of both the
petitioners, which is challenged in these Special Leave Petitions.=
Admittedly, in the case of the petitioners, the lease deed has been
executed by the Land Manager.
The execution of the lease deed is as per the decision by the competent authority.
If that be so, the lease can be
terminated by the same authority who executed the lease deed, after a
decision has been made in that regard by the competent authority.
In P.Saibaba Rao S/o Amruth Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and
Dr. N. Sudhakar Rao S/o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa Rao
S/o Swami Rao and Ors.[6]
High Court of Andhra Pradesh considered the situation of termination of a contract.
The contention was that the
Superintendent Engineer was not competent to terminate the contract in
terms of the guidelines.
His authority was only to execute the contract.
Negating the same, it was held as follows:
“It is very interesting to notice that entry 5(b) of the
Government order as above speaks of instruments relating to execution
of works including Highways. The officer authorized to execute these
instruments among others is SE. Chapter II of PWD Code deals with,
"Works". It contains paragraphs 88 to 224. Nowhere has it mentioned
any authority, who is conferred with power to terminate/cancel the
contract entered into by SE as per Paragraph 159 of PWD Code read with
executive instructions. Petitioners have failed to bring any evidence
in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965, it
was clarified that SE is competent to execute contracts and piece work
agreements upto the limit of tenders accepted by the competent
authority regardless of whether they were accepted by SE and
irrespective of restrictions imposed on the powers of SE in the matter
of acceptance of contract. This means that SE is competent to enter
into contract and also for terminating/ closing/cancelling the
contract. The power to enter into contracts or the authorisation to
execute instruments also includes the power to execute contracts or
instruments cancelling a contract. It may also be noticed that under
preliminary specification Nos. 7 and 8 of APSS, SE is competent to
alter the standard specifications for a particular contract. Thus
authorization given to SE under G.O.Ms. No. 1632, dated 24.10.1958, is
all pervasive and the same cannot be interpreted in a restrictive
manner.”
We respectfully endorse the legal principle.
19. We do not find any legal infirmity in the impugned notices issued by
the Land Manager of the Kolkata Port Trust, as noted by the Division Bench
of the Calcutta High Court, in the impugned judgment. The power is
exercised only as duly authorized by the Chairman. The Land Manager is also
otherwise competent to issue notices after due decision has been taken in
that regard by the competent authority since he is the one who executed the
lease deed. There is no merit in these Petitions.
20. The Special Leave Petitions are hence dismissed. There is no order
as to costs.
2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41420
GYAN SUDHA MISRA, KURIAN JOSEPH
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.18347/2013
SIDHARTHA SARAWGI … PETITIONER (S)
VERSUS
BOARD OF TRUSTEES FOR THE
PORT OF KOLKATA AND OTHERS … RESPONDENT (S)
WITH
SPECIAL LEAVE PETITION (CIVIL) NOS.19458-19459/2013
UNIVERSAL AUTOCRAFTS PRIVATE
LIMITED AND ANOTHER … PETITIONER (S)
VERSUS
BOARD OF TRUSTEES FOR THE
PORT OF KOLKATA AND OTHERS … RESPONDENT (S)
WITH
SPECIAL LEAVE PETITION (CIVIL) NO.19600/2013
SIDHARTHA SARAWGI … PETITIONER (S)
VERSUS
BOARD OF TRUSTEES FOR THE
PORT OF KOLKATA AND OTHERS … RESPONDENT (S)
WITH
SPECIAL LEAVE PETITION (CIVIL) NO.19652/2013
SIDHARTHA SARAWGI … PETITIONER (S)
VERSUS
BOARD OF TRUSTEES FOR THE
PORT OF KOLKATA AND OTHERS … RESPONDENT (S)
J U D G M E N T
KURIAN, J.:
1. Delegatus Non Potest Delegare: A delegate has no power to delegate,
is a well-settled principle. Is there any exception and is there any
distinction between delegation of legislative and non-legislative powers,
are the moot issues arising for consideration in these cases.
2. Delegation is the act of making or commissioning a delegate. It
generally means parting of powers by the person who grants the delegation
and conferring of an authority to do things which otherwise that person
would have to do himself. Delegation is defined in Black’s Law Dictionary
as “the act of entrusting another with authority by empowering another to
act as an agent or representative”. In P. Ramanatha Aiyar’s, The Law
Lexicon, “delegation is the act of making or commissioning a delegate.
Delegation generally means parting of powers by the person who grants the
delegation, but it also means conferring of an authority to do things which
otherwise that person would have to do himself”. Justice Mathew in Gwalior
Rayon Silk Manufacturing (Wvg.) Co. Ltd. v. The Assistant Commissioner of
Sales Tax and Others[1], has succinctly discussed the concept of
delegation. Paragraph 37 reads as follows:
“37. … Delegation is not the complete handing over or transference of
a power from one person or body of persons to another. Delegation may
be defined as the entrusting, by a person or body of persons, of the
exercise of a power residing in that person or body of persons, to
another person or body of persons, with complete power of revocation
or amendment remaining in the grantor or delegator. It is important to
grasp the implications of this, for, much confusion of thought has
unfortunately resulted from assuming that delegation involves or may
involve, the complete abdication or abrogation of a power. This is
precluded by the definition. Delegation often involves the granting of
discretionary authority to another, but such authority is purely
derivative. The ultimate power always remains in the delegator and is
never renounced.”
3. There is a subtle distinction between delegation of legislative
powers and delegation of
non-legislative/administrative powers. As far as delegation of power to
legislate is concerned, the law is well-settled: the said power cannot be
sub-delegated. The Legislature cannot delegate essential legislative
functions which consist in the determination or choosing of the legislative
policy and formally enacting that policy into a binding rule of conduct[2].
Subordinate legislation which is generally in the realm of Rules and
Regulations dealing with the procedure on implementation of plenary
legislation is generally a task entrusted to a specified authority. Since
the Legislature need not spend its time for working out the details on
implementation of the law, it has thought it fit to entrust the said task
to an agency. That agency cannot entrust such task to its subordinates; it
would be a breach of the confidence reposed on the delegate.
4. Regarding delegation of non-legislative/administrative powers on a
person or a body to do certain things, whether the delegate himself is to
perform such functions or whether after taking decision as per the terms of
the delegation, the said agency can authorize the implementation of the
same on somebody else, is the question to be considered. Once the power is
conferred, after exercising the said power, how to implement the decision
taken in the process, is a matter of procedure. The Legislature may, after
laying down the legislative policy, confer discretion on an administrative
agency as to the execution of the policy and leave it to the agency to work
out the details within the framework of that policy[3]. So long as the
essential functions of decision making is performed by the delegate, the
burden of performing the ancillary and clerical task need not be shouldered
by the primary delegate. It is not necessary that the primary delegate
himself should perform the ministerial acts as well. In furtherance of the
implementation of the decision already taken by the primary delegate as per
the delegation, ministerial or clerical tasks may be performed by
authorized officers. The complexity of modern day administration and the
expansion of functions of the State to the economic and social spheres have
made it necessary that the Legislature gives wide powers to various
authorities when the situation requires it. Today’s governmental functions
are a lot more complex and the need for delegation of powers has become
more compelling. It cannot be expected that the head of the administrative
body performs each and every task himself.
5. The issue was considered by this Court in Jamal Uddin Ahmad v. Abu
Saleh Najmuddin and Another[4] in the context of the procedure for filing
of the election petitions under Section 81 of the Representation of Peoples
Act, 1951. It was held that the ministerial or administrative functions of
the authority on whom the powers are conferred by the statute can be
exercised by the authorized officers. It was held that:
“13. The functions discharged by a High Court can be divided broadly
into judicial and administrative functions. The judicial functions are
to be discharged essentially by the Judges as per the Rules of the
Court and cannot be delegated. However, administrative functions need
not necessarily be discharged by the Judges by themselves, whether
individually or collectively or in a group of two or more, and may be
delegated or entrusted by authorization to subordinates unless there
be some rule of law restraining such delegation or authorisation.
Every High Court consists of some administrative and ministerial staff
which is as much a part of the High Court as an institution and is
meant to be entrusted with the responsibility of discharging
administrative and ministerial functions. There can be “delegation” as
also there can be “authorization” in favour of the Registry and the
officials therein by empowering or entrusting them with authority or
by permitting a few things to be done by them for and on behalf of the
Court so as to aid the Judges in discharge of their judicial
functioning. Authorization may take the form of formal conferral or
sanction or may be by way of approval or countenance. Such delegation
or authorization is not a matter of mere convenience but a necessity
at times. The Judges are already overburdened with the task of
performing judicial functions and the constraints on their time and
energy are so demanding that it is in public interest to allow them to
devote time and energy as much as possible in discharging their
judicial functions, relieving them of the need for diverting their
limited resources of time and energy to such administrative or
ministerial functions, which, on any principle of propriety, logic, or
necessity are not required necessarily to be performed by the Judges.
Receiving a cause or a document and making it presentable to a Judge
for the purpose of hearing or trial and many a functions post-
decision, which functions are administrative and ministerial in
nature, can be and are generally entrusted or made over to be
discharged by the staff of the High Court, often by making a provision
in the Rules or under the orders of the Chief Justice or by issuing
practice directions, and at times, in the absence of rules, by sheer
practice. The practice gathers the strength of law and the older the
practice the greater is the strength…”
6. Practical necessities or exigencies of administration require that
the decision making authority who has been conferred with statutory power,
be able to delegate tasks when the situation so requires. Thus, the maxim
delegatus non potest delegare, gives way in the performance of
administrative or ministerial tasks by subordinate authorities in
furtherance of the exercise of the delegated power by an authority.
7. It would also be useful in this context to refer to the decision of this
Court in Barium Chemicals Limited and Another v. The Company Law Board and
Another[5] wherein it is held at paragraph 36 as follows:
“…the maxim delegatus non potest delegare must not be pushed too far.
The maxim does not embody a rule of law. It indicates a rule of
construction of a statute or other instrument conferring an authority.
Prima facie, a discretion conferred by a statute on any authority is
intended to be exercised by that authority and by no other. But the
intention may be negatived by any contrary indications in the
language, scope or object of the statute. The construction that would
best achieve the purpose and object of the statute should be adopted.”
8. The Constitution confers power and imposes duty on the Legislature to
make laws and the said functions cannot be delegated by the Legislature to
the executive. The Legislature is constitutionally required to keep in its
own hands the essential legislative functions which consist of the
determination of legislative policy and its formulation as a binding rule
of conduct. After the performance of the essential legislative function by
the Legislature and laying the guiding policy, the Legislature may delegate
to the executive or administrative authority, any ancillary or subordinate
powers that are necessary for giving effect to the policy and purposes of
the enactment. In construing the scope and extent of delegated power, the
difference between the essential and non-essential functions of the
delegate should also be borne in mind. While there cannot be sub-delegation
of any essential functions, in order to achieve the intended object of the
delegation, the non-essential functions can be sub-delegated to be
performed under the authority and supervision of the delegate.
9. Sometimes, in the plenary legislation itself, the lawmakers may
provide for such sub-delegation. That is what we see under Section 21 and
34 of the Major Port Trusts Act, 1963, which we shall be discussing in more
detail at a later part of this judgment.
10. Having analysed the legal position as above, we shall now deal with
the factual position in these cases. The challenge is on the judgment
dated 28.01.2013 of the Division Bench of the Calcutta High Court. The
issue pertains to the determination of leases granted by the Kolkata Port
Trust to the petitioners. In the case of Universal Autocrafts Private
Limited, they were granted lease of a plot of land for 30 years, on
19.08.1990. The lease deed was executed by the Land Manager of the Kolkata
Port Trust. On 05.02.2008, a letter was issued to the said petitioner to
demolish an alleged unauthorized construction and eject the sub-tenants
from the premises. The petitioner submitted its reply on 02.05.2008. Not
satisfied with the reply, on 30.01.2009, a notice terminating the lease was
issued. The ejectment notice was signed by the Land Manager. The main
contention is that the ejectment notice issued by the Land Manager is
illegal and without jurisdiction as he is not competent to issue such
ejectment notices. In the case of Siddhartha Sarawgi, the leases were
terminated during the subsistence of the renewed period of 30 years, on the
ground of sub-letting without consent of the Kolkata Port Trust. In his
case also, the ejectment notices were issued by the Land Manager and,
hence, it is contended that there can be no eviction on the basis of
ejectment notice issued by a person who is not competent to do so, the same
being without jurisdiction. The said ejectment notices were challenged by
both the petitioners before the Calcutta High Court. In the case of
Universal Autocrafts Private Limited, the learned Single Judge of Calcutta
High Court allowed the writ petition holding that the Land Manager was not
competent to issue the ejectment notice. In the writ petition filed by
Sidhartha Sarawgi, the learned Single Judge of the Calcutta High Court
found a conflict between two earlier decisions and referred the matter to a
Division Bench. The Division Bench vide common judgment dated 28.01.2003
held in favour of the Kolkata Port Trust in the case of both the
petitioners, which is challenged in these Special Leave Petitions.
11. The Major Port Trusts Act, 1963 (hereinafter referred to as, ‘the
Act’) is an Act intended “to make provision for the constitution of port
authorities for certain major ports in India and to vest the
administration, control and management of such ports in such authorities
and for matters connected therewith”. Section 3 of the Act provides for the
constitution of a Board of Trustees (hereinafter referred to as ‘the
Board’). Section 5 provides that:
“5. Board to be body corporate.-Every Board constituted under this Act
shall be a body corporate having perpetual succession and a common
seal with power, subject to the provisions of this Act, to acquire,
hold or dispose of property and may by the name by which it is
constituted, sue or be sued.”
12. Section 21 of the Act provides for delegation of powers of the Board
with the approval of the Central Government on the Chairman and
specification of exercise of such powers conferred on the Chairman by the
Deputy Chairman or any other officer of the Board. The provision reads as
follows:
“21. Delegation of powers.-A Board may, with the approval of the
Central Government, specify-
a) the powers and duties conferred or imposed upon the Board by
or under this Act, which may also be exercised or performed
by the Chairman; and
b) the powers and duties conferred or imposed on the Chairman by
or under this Act, which may also be exercised or performed
by the Deputy Chairman or any officer of the Board and the
conditions and restrictions, if any, subject to which such
powers and duties may be exercised and performed:
Provided that any powers and duties conferred or imposed upon the
Deputy Chairman or any officer of the Board under clause (b) shall be
exercised and performed by him subject to the supervision and control
of the Chairman.”
13. Section 34 of the Act provides for the mode of executing contracts on
behalf of Board. It is provided therein that every contract is to be made
by the Chairman or any other officer of the Board not below the rank of the
Head of a Department as authorized by the Chairman, on behalf of the Board.
The provision reads as follows:
“34. Mode of executing contracts on behalf of Board.-(1) Every
contract shall, on behalf of a Board, be made by the Chairman or by
any such officer of the Board not below the rank of the Head of a
Department as the Chairman may, by general or special order, authorise
in this behalf and shall be sealed with the common seal of the Board:
Provided that no contract whereof the value or amount exceeds
such value or amount as the Central Government may from time to time
fix in this behalf shall be made unless it has been previously
approved by the Board:
Provided further that no contract for the acquisition or sale of
immovable property or for the lease of any such property for a term
exceeding thirty years, and no other contract whereof the value or
amount exceeds such value or amount as the Central Government may from
time to time fix in this behalf, shall be made unless it has been
previously approved by the Central Government.
(2) Subject to the provisions of sub- section (1), the form and manner
in which any contract shall be made under this Act shall be such as
may be prescribed by regulations made in this behalf.
(3) No contract which is not made in accordance with the provisions of
this Act and the regulations made thereunder shall be binding on the
Board.”
14. In exercise of the power under Section 21 on delegation of powers,
the Board of the Kolkata Port Trust passed Resolution No. 82 dated
26.05.1988 delegating the power to terminate any lease on the Chairman. The
Chairman was also authorized by the said Resolution to issue ejectment
notices. The text of the Resolution reads as follows:
“.. Resolution No. 82- Resolved to sanction the proposal for
delegation of powers to the Chairman by invocation of section 21(a) of
the Major Port Trust Act, 1963, the power to terminate leases
sanctioned by the Trustees and to authorizing him to issue ejectment
notices, subject to the sanction of the Government.”
15. It is the contention of the petitioners that the power to terminate
the lease having been specifically conferred on the Chairman, the steps now
taken by the Land Manager by issuing the impugned notices for eviction, are
clearly without jurisdiction and, hence, illegal and inoperative. On behalf
of the Board of Kolkata Port Trust, it is contended that the decision to
terminate the lease has actually been taken by the Chairman and the
issuance of notice of termination in furtherance of the decision taken by
the Chairman alone, has been delegated to the Land Manager. Our attention
is also invited to Office Order No. 6480/3/0 dated 22.01.1990, which reads
as under: -
“CALCUTTA PORT TRUST
No. 6480/3/0 January 22, 1990
OFFICE ORDER
Henceforth ejectment (sic) notices in respect of leases determined
with my approval may be signed by any one of the undernoted officers:
Calcutta
1) Deputy Chairman (Calcutta)
2) Land Manager
Haldia
1) Deputy Chairman (Haldia)
2) General Manager (Mas)
3) Manager (I&C.F)”
16. The power that is delegated to the Chairman as per Resolution No. 82
is the power to terminate a lease. The decision to terminate has been taken
by the Chairman only and there is no dispute in that regard. In
implementation of the decision thus taken by the Chairman to terminate the
leases, the Chairman has authorized the Land Manager to issue the ejectment
notices. The issuance of such notices is a mere ministerial act for the
implementation of a decision already taken by the Chairman as delegated by
the Board. The Chairman having duly authorized the Land Manager in that
regard, it cannot be said that the ejectment notice issued by the Land
Manager is without jurisdiction. It is not a case of sub-delegation. It is
merely a ministerial exercise of issuance of a notice in implementation of
the decision, as per the specific authorization in that regard.
17. The situation can be viewed from another angle as well. Section 21 of
The General Clauses Act, 1897 provides that power to issue would include
power to add, amend, vary or rescind. The provision reads as follows:
“21. Power to issue, to include power to add to, amend, vary or
rescind notifications, orders, rules or bye-laws.-Where, by any
Central Act or Regulations a power to issue notifications, orders,
rules or bye-laws is conferred, then that power includes a power,
exercisable in the like manner and subject to the like sanction and
conditions (if any), to add to, amend, vary or rescind any
notifications, orders, rules or bye-laws so issued.”
18. Admittedly, in the case of the petitioners, the lease deed has been
executed by the Land Manager. The execution of the lease deed is as per the
decision by the competent authority. If that be so, the lease can be
terminated by the same authority who executed the lease deed, after a
decision has been made in that regard by the competent authority. In P.
Saibaba Rao S/o Amruth Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and
Dr. N. Sudhakar Rao S/o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa Rao
S/o Swami Rao and Ors.[6] High Court of Andhra Pradesh considered the
situation of termination of a contract. The contention was that the
Superintendent Engineer was not competent to terminate the contract in
terms of the guidelines. His authority was only to execute the contract.
Negating the same, it was held as follows:
“It is very interesting to notice that entry 5(b) of the
Government order as above speaks of instruments relating to execution
of works including Highways. The officer authorized to execute these
instruments among others is SE. Chapter II of PWD Code deals with,
"Works". It contains paragraphs 88 to 224. Nowhere has it mentioned
any authority, who is conferred with power to terminate/cancel the
contract entered into by SE as per Paragraph 159 of PWD Code read with
executive instructions. Petitioners have failed to bring any evidence
in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965, it
was clarified that SE is competent to execute contracts and piece work
agreements upto the limit of tenders accepted by the competent
authority regardless of whether they were accepted by SE and
irrespective of restrictions imposed on the powers of SE in the matter
of acceptance of contract. This means that SE is competent to enter
into contract and also for terminating/ closing/cancelling the
contract. The power to enter into contracts or the authorisation to
execute instruments also includes the power to execute contracts or
instruments cancelling a contract. It may also be noticed that under
preliminary specification Nos. 7 and 8 of APSS, SE is competent to
alter the standard specifications for a particular contract. Thus
authorization given to SE under G.O.Ms. No. 1632, dated 24.10.1958, is
all pervasive and the same cannot be interpreted in a restrictive
manner.”
We respectfully endorse the legal principle.
19. We do not find any legal infirmity in the impugned notices issued by
the Land Manager of the Kolkata Port Trust, as noted by the Division Bench
of the Calcutta High Court, in the impugned judgment. The power is
exercised only as duly authorized by the Chairman. The Land Manager is also
otherwise competent to issue notices after due decision has been taken in
that regard by the competent authority since he is the one who executed the
lease deed. There is no merit in these Petitions.
20. The Special Leave Petitions are hence dismissed. There is no order
as to costs.
…………….…..…………J.
(GYAN SUDHA MISRA)
.……..……………………J.
(KURIAN JOSEPH)
New Delhi;
April 16, 2014.
-----------------------
[1] (1974) 4 SCC 98
[2] Harishanker Bagla v. State of M.P. – (1955) 1 SCR 380 (Page 388)
Agricultural Market Committee v. Shalimar Chemical Works Limited –
(1997) 5 SCC 516 (Paragraph 24)
[3] Khambalia Municipality v. State of Gujarat – AIR 1967 SC 1048
(P.1051)
[4] (2003) 4 SCC 257
[5] AIR 1967 SC 295
[6] Election Petition Nos. 1 and 3 of 2004, Judgment dated 30.08.2007.
-----------------------
REPORTABLE
-----------------------
16
is a well-settled principle. - Powers of Land Manger of the Port trust - lessee did unauthorised constructions and also sublet the same with out permission - Eject notice was issued - Challenged on the ground the land manger has no authority to issue - single judge allowed the writ - D.B. reversed the order of single judge and allowed the writ appeal - Apex court held that We do not find any legal infirmity in the impugned notices issued by the Land Manager of the Kolkata Port Trust, as noted by the Division Bench of the Calcutta High Court, in the impugned judgment. The power is exercised only as duly authorized by the Chairman. The Land Manager is also otherwise competent to issue notices after due decision has been taken in that regard by the competent authority since he is the one who executed the lease deed. There is no merit in these Petitions.=
Delegatus Non Potest Delegare: A delegate has no power to delegate,
is a well-settled principle.
In P. Ramanatha Aiyar’s, The Law
Lexicon, “delegation is the act of making or commissioning a delegate.
Delegation generally means parting of powers by the person who grants the
delegation, but it also means conferring of an authority to do things which
otherwise that person would have to do himself”.
The main
contention is that the ejectment notice issued by the Land Manager is
illegal and without jurisdiction as he is not competent to issue such
ejectment notices. In the case of Siddhartha Sarawgi, the leases were
terminated during the subsistence of the renewed period of 30 years, on the
ground of sub-letting without consent of the Kolkata Port Trust. In his
case also, the ejectment notices were issued by the Land Manager and,
hence, it is contended that there can be no eviction on the basis of
ejectment notice issued by a person who is not competent to do so, the same
being without jurisdiction. The said ejectment notices were challenged by
both the petitioners before the Calcutta High Court. In the case of
Universal Autocrafts Private Limited, the learned Single Judge of Calcutta
High Court allowed the writ petition holding that the Land Manager was not
competent to issue the ejectment notice. In the writ petition filed by
Sidhartha Sarawgi, the learned Single Judge of the Calcutta High Court
found a conflict between two earlier decisions and referred the matter to a
Division Bench. The Division Bench vide common judgment dated 28.01.2003
held in favour of the Kolkata Port Trust in the case of both the
petitioners, which is challenged in these Special Leave Petitions.=
executed by the Land Manager.
The execution of the lease deed is as per the decision by the competent authority.
If that be so, the lease can be
terminated by the same authority who executed the lease deed, after a
decision has been made in that regard by the competent authority.
In P.Saibaba Rao S/o Amruth Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and
Dr. N. Sudhakar Rao S/o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa Rao
S/o Swami Rao and Ors.[6]
High Court of Andhra Pradesh considered the situation of termination of a contract.
The contention was that the
Superintendent Engineer was not competent to terminate the contract in
terms of the guidelines.
His authority was only to execute the contract.
Negating the same, it was held as follows:
“It is very interesting to notice that entry 5(b) of the
Government order as above speaks of instruments relating to execution
of works including Highways. The officer authorized to execute these
instruments among others is SE. Chapter II of PWD Code deals with,
"Works". It contains paragraphs 88 to 224. Nowhere has it mentioned
any authority, who is conferred with power to terminate/cancel the
contract entered into by SE as per Paragraph 159 of PWD Code read with
executive instructions. Petitioners have failed to bring any evidence
in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965, it
was clarified that SE is competent to execute contracts and piece work
agreements upto the limit of tenders accepted by the competent
authority regardless of whether they were accepted by SE and
irrespective of restrictions imposed on the powers of SE in the matter
of acceptance of contract. This means that SE is competent to enter
into contract and also for terminating/ closing/cancelling the
contract. The power to enter into contracts or the authorisation to
execute instruments also includes the power to execute contracts or
instruments cancelling a contract. It may also be noticed that under
preliminary specification Nos. 7 and 8 of APSS, SE is competent to
alter the standard specifications for a particular contract. Thus
authorization given to SE under G.O.Ms. No. 1632, dated 24.10.1958, is
all pervasive and the same cannot be interpreted in a restrictive
manner.”
We respectfully endorse the legal principle.
19. We do not find any legal infirmity in the impugned notices issued by
the Land Manager of the Kolkata Port Trust, as noted by the Division Bench
of the Calcutta High Court, in the impugned judgment. The power is
exercised only as duly authorized by the Chairman. The Land Manager is also
otherwise competent to issue notices after due decision has been taken in
that regard by the competent authority since he is the one who executed the
lease deed. There is no merit in these Petitions.
20. The Special Leave Petitions are hence dismissed. There is no order
as to costs.
2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41420
GYAN SUDHA MISRA, KURIAN JOSEPH
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.18347/2013
SIDHARTHA SARAWGI … PETITIONER (S)
VERSUS
BOARD OF TRUSTEES FOR THE
PORT OF KOLKATA AND OTHERS … RESPONDENT (S)
WITH
SPECIAL LEAVE PETITION (CIVIL) NOS.19458-19459/2013
UNIVERSAL AUTOCRAFTS PRIVATE
LIMITED AND ANOTHER … PETITIONER (S)
VERSUS
BOARD OF TRUSTEES FOR THE
PORT OF KOLKATA AND OTHERS … RESPONDENT (S)
WITH
SPECIAL LEAVE PETITION (CIVIL) NO.19600/2013
SIDHARTHA SARAWGI … PETITIONER (S)
VERSUS
BOARD OF TRUSTEES FOR THE
PORT OF KOLKATA AND OTHERS … RESPONDENT (S)
WITH
SPECIAL LEAVE PETITION (CIVIL) NO.19652/2013
SIDHARTHA SARAWGI … PETITIONER (S)
VERSUS
BOARD OF TRUSTEES FOR THE
PORT OF KOLKATA AND OTHERS … RESPONDENT (S)
J U D G M E N T
KURIAN, J.:
1. Delegatus Non Potest Delegare: A delegate has no power to delegate,
is a well-settled principle. Is there any exception and is there any
distinction between delegation of legislative and non-legislative powers,
are the moot issues arising for consideration in these cases.
2. Delegation is the act of making or commissioning a delegate. It
generally means parting of powers by the person who grants the delegation
and conferring of an authority to do things which otherwise that person
would have to do himself. Delegation is defined in Black’s Law Dictionary
as “the act of entrusting another with authority by empowering another to
act as an agent or representative”. In P. Ramanatha Aiyar’s, The Law
Lexicon, “delegation is the act of making or commissioning a delegate.
Delegation generally means parting of powers by the person who grants the
delegation, but it also means conferring of an authority to do things which
otherwise that person would have to do himself”. Justice Mathew in Gwalior
Rayon Silk Manufacturing (Wvg.) Co. Ltd. v. The Assistant Commissioner of
Sales Tax and Others[1], has succinctly discussed the concept of
delegation. Paragraph 37 reads as follows:
“37. … Delegation is not the complete handing over or transference of
a power from one person or body of persons to another. Delegation may
be defined as the entrusting, by a person or body of persons, of the
exercise of a power residing in that person or body of persons, to
another person or body of persons, with complete power of revocation
or amendment remaining in the grantor or delegator. It is important to
grasp the implications of this, for, much confusion of thought has
unfortunately resulted from assuming that delegation involves or may
involve, the complete abdication or abrogation of a power. This is
precluded by the definition. Delegation often involves the granting of
discretionary authority to another, but such authority is purely
derivative. The ultimate power always remains in the delegator and is
never renounced.”
3. There is a subtle distinction between delegation of legislative
powers and delegation of
non-legislative/administrative powers. As far as delegation of power to
legislate is concerned, the law is well-settled: the said power cannot be
sub-delegated. The Legislature cannot delegate essential legislative
functions which consist in the determination or choosing of the legislative
policy and formally enacting that policy into a binding rule of conduct[2].
Subordinate legislation which is generally in the realm of Rules and
Regulations dealing with the procedure on implementation of plenary
legislation is generally a task entrusted to a specified authority. Since
the Legislature need not spend its time for working out the details on
implementation of the law, it has thought it fit to entrust the said task
to an agency. That agency cannot entrust such task to its subordinates; it
would be a breach of the confidence reposed on the delegate.
4. Regarding delegation of non-legislative/administrative powers on a
person or a body to do certain things, whether the delegate himself is to
perform such functions or whether after taking decision as per the terms of
the delegation, the said agency can authorize the implementation of the
same on somebody else, is the question to be considered. Once the power is
conferred, after exercising the said power, how to implement the decision
taken in the process, is a matter of procedure. The Legislature may, after
laying down the legislative policy, confer discretion on an administrative
agency as to the execution of the policy and leave it to the agency to work
out the details within the framework of that policy[3]. So long as the
essential functions of decision making is performed by the delegate, the
burden of performing the ancillary and clerical task need not be shouldered
by the primary delegate. It is not necessary that the primary delegate
himself should perform the ministerial acts as well. In furtherance of the
implementation of the decision already taken by the primary delegate as per
the delegation, ministerial or clerical tasks may be performed by
authorized officers. The complexity of modern day administration and the
expansion of functions of the State to the economic and social spheres have
made it necessary that the Legislature gives wide powers to various
authorities when the situation requires it. Today’s governmental functions
are a lot more complex and the need for delegation of powers has become
more compelling. It cannot be expected that the head of the administrative
body performs each and every task himself.
5. The issue was considered by this Court in Jamal Uddin Ahmad v. Abu
Saleh Najmuddin and Another[4] in the context of the procedure for filing
of the election petitions under Section 81 of the Representation of Peoples
Act, 1951. It was held that the ministerial or administrative functions of
the authority on whom the powers are conferred by the statute can be
exercised by the authorized officers. It was held that:
“13. The functions discharged by a High Court can be divided broadly
into judicial and administrative functions. The judicial functions are
to be discharged essentially by the Judges as per the Rules of the
Court and cannot be delegated. However, administrative functions need
not necessarily be discharged by the Judges by themselves, whether
individually or collectively or in a group of two or more, and may be
delegated or entrusted by authorization to subordinates unless there
be some rule of law restraining such delegation or authorisation.
Every High Court consists of some administrative and ministerial staff
which is as much a part of the High Court as an institution and is
meant to be entrusted with the responsibility of discharging
administrative and ministerial functions. There can be “delegation” as
also there can be “authorization” in favour of the Registry and the
officials therein by empowering or entrusting them with authority or
by permitting a few things to be done by them for and on behalf of the
Court so as to aid the Judges in discharge of their judicial
functioning. Authorization may take the form of formal conferral or
sanction or may be by way of approval or countenance. Such delegation
or authorization is not a matter of mere convenience but a necessity
at times. The Judges are already overburdened with the task of
performing judicial functions and the constraints on their time and
energy are so demanding that it is in public interest to allow them to
devote time and energy as much as possible in discharging their
judicial functions, relieving them of the need for diverting their
limited resources of time and energy to such administrative or
ministerial functions, which, on any principle of propriety, logic, or
necessity are not required necessarily to be performed by the Judges.
Receiving a cause or a document and making it presentable to a Judge
for the purpose of hearing or trial and many a functions post-
decision, which functions are administrative and ministerial in
nature, can be and are generally entrusted or made over to be
discharged by the staff of the High Court, often by making a provision
in the Rules or under the orders of the Chief Justice or by issuing
practice directions, and at times, in the absence of rules, by sheer
practice. The practice gathers the strength of law and the older the
practice the greater is the strength…”
6. Practical necessities or exigencies of administration require that
the decision making authority who has been conferred with statutory power,
be able to delegate tasks when the situation so requires. Thus, the maxim
delegatus non potest delegare, gives way in the performance of
administrative or ministerial tasks by subordinate authorities in
furtherance of the exercise of the delegated power by an authority.
7. It would also be useful in this context to refer to the decision of this
Court in Barium Chemicals Limited and Another v. The Company Law Board and
Another[5] wherein it is held at paragraph 36 as follows:
“…the maxim delegatus non potest delegare must not be pushed too far.
The maxim does not embody a rule of law. It indicates a rule of
construction of a statute or other instrument conferring an authority.
Prima facie, a discretion conferred by a statute on any authority is
intended to be exercised by that authority and by no other. But the
intention may be negatived by any contrary indications in the
language, scope or object of the statute. The construction that would
best achieve the purpose and object of the statute should be adopted.”
8. The Constitution confers power and imposes duty on the Legislature to
make laws and the said functions cannot be delegated by the Legislature to
the executive. The Legislature is constitutionally required to keep in its
own hands the essential legislative functions which consist of the
determination of legislative policy and its formulation as a binding rule
of conduct. After the performance of the essential legislative function by
the Legislature and laying the guiding policy, the Legislature may delegate
to the executive or administrative authority, any ancillary or subordinate
powers that are necessary for giving effect to the policy and purposes of
the enactment. In construing the scope and extent of delegated power, the
difference between the essential and non-essential functions of the
delegate should also be borne in mind. While there cannot be sub-delegation
of any essential functions, in order to achieve the intended object of the
delegation, the non-essential functions can be sub-delegated to be
performed under the authority and supervision of the delegate.
9. Sometimes, in the plenary legislation itself, the lawmakers may
provide for such sub-delegation. That is what we see under Section 21 and
34 of the Major Port Trusts Act, 1963, which we shall be discussing in more
detail at a later part of this judgment.
10. Having analysed the legal position as above, we shall now deal with
the factual position in these cases. The challenge is on the judgment
dated 28.01.2013 of the Division Bench of the Calcutta High Court. The
issue pertains to the determination of leases granted by the Kolkata Port
Trust to the petitioners. In the case of Universal Autocrafts Private
Limited, they were granted lease of a plot of land for 30 years, on
19.08.1990. The lease deed was executed by the Land Manager of the Kolkata
Port Trust. On 05.02.2008, a letter was issued to the said petitioner to
demolish an alleged unauthorized construction and eject the sub-tenants
from the premises. The petitioner submitted its reply on 02.05.2008. Not
satisfied with the reply, on 30.01.2009, a notice terminating the lease was
issued. The ejectment notice was signed by the Land Manager. The main
contention is that the ejectment notice issued by the Land Manager is
illegal and without jurisdiction as he is not competent to issue such
ejectment notices. In the case of Siddhartha Sarawgi, the leases were
terminated during the subsistence of the renewed period of 30 years, on the
ground of sub-letting without consent of the Kolkata Port Trust. In his
case also, the ejectment notices were issued by the Land Manager and,
hence, it is contended that there can be no eviction on the basis of
ejectment notice issued by a person who is not competent to do so, the same
being without jurisdiction. The said ejectment notices were challenged by
both the petitioners before the Calcutta High Court. In the case of
Universal Autocrafts Private Limited, the learned Single Judge of Calcutta
High Court allowed the writ petition holding that the Land Manager was not
competent to issue the ejectment notice. In the writ petition filed by
Sidhartha Sarawgi, the learned Single Judge of the Calcutta High Court
found a conflict between two earlier decisions and referred the matter to a
Division Bench. The Division Bench vide common judgment dated 28.01.2003
held in favour of the Kolkata Port Trust in the case of both the
petitioners, which is challenged in these Special Leave Petitions.
11. The Major Port Trusts Act, 1963 (hereinafter referred to as, ‘the
Act’) is an Act intended “to make provision for the constitution of port
authorities for certain major ports in India and to vest the
administration, control and management of such ports in such authorities
and for matters connected therewith”. Section 3 of the Act provides for the
constitution of a Board of Trustees (hereinafter referred to as ‘the
Board’). Section 5 provides that:
“5. Board to be body corporate.-Every Board constituted under this Act
shall be a body corporate having perpetual succession and a common
seal with power, subject to the provisions of this Act, to acquire,
hold or dispose of property and may by the name by which it is
constituted, sue or be sued.”
12. Section 21 of the Act provides for delegation of powers of the Board
with the approval of the Central Government on the Chairman and
specification of exercise of such powers conferred on the Chairman by the
Deputy Chairman or any other officer of the Board. The provision reads as
follows:
“21. Delegation of powers.-A Board may, with the approval of the
Central Government, specify-
a) the powers and duties conferred or imposed upon the Board by
or under this Act, which may also be exercised or performed
by the Chairman; and
b) the powers and duties conferred or imposed on the Chairman by
or under this Act, which may also be exercised or performed
by the Deputy Chairman or any officer of the Board and the
conditions and restrictions, if any, subject to which such
powers and duties may be exercised and performed:
Provided that any powers and duties conferred or imposed upon the
Deputy Chairman or any officer of the Board under clause (b) shall be
exercised and performed by him subject to the supervision and control
of the Chairman.”
13. Section 34 of the Act provides for the mode of executing contracts on
behalf of Board. It is provided therein that every contract is to be made
by the Chairman or any other officer of the Board not below the rank of the
Head of a Department as authorized by the Chairman, on behalf of the Board.
The provision reads as follows:
“34. Mode of executing contracts on behalf of Board.-(1) Every
contract shall, on behalf of a Board, be made by the Chairman or by
any such officer of the Board not below the rank of the Head of a
Department as the Chairman may, by general or special order, authorise
in this behalf and shall be sealed with the common seal of the Board:
Provided that no contract whereof the value or amount exceeds
such value or amount as the Central Government may from time to time
fix in this behalf shall be made unless it has been previously
approved by the Board:
Provided further that no contract for the acquisition or sale of
immovable property or for the lease of any such property for a term
exceeding thirty years, and no other contract whereof the value or
amount exceeds such value or amount as the Central Government may from
time to time fix in this behalf, shall be made unless it has been
previously approved by the Central Government.
(2) Subject to the provisions of sub- section (1), the form and manner
in which any contract shall be made under this Act shall be such as
may be prescribed by regulations made in this behalf.
(3) No contract which is not made in accordance with the provisions of
this Act and the regulations made thereunder shall be binding on the
Board.”
14. In exercise of the power under Section 21 on delegation of powers,
the Board of the Kolkata Port Trust passed Resolution No. 82 dated
26.05.1988 delegating the power to terminate any lease on the Chairman. The
Chairman was also authorized by the said Resolution to issue ejectment
notices. The text of the Resolution reads as follows:
“.. Resolution No. 82- Resolved to sanction the proposal for
delegation of powers to the Chairman by invocation of section 21(a) of
the Major Port Trust Act, 1963, the power to terminate leases
sanctioned by the Trustees and to authorizing him to issue ejectment
notices, subject to the sanction of the Government.”
15. It is the contention of the petitioners that the power to terminate
the lease having been specifically conferred on the Chairman, the steps now
taken by the Land Manager by issuing the impugned notices for eviction, are
clearly without jurisdiction and, hence, illegal and inoperative. On behalf
of the Board of Kolkata Port Trust, it is contended that the decision to
terminate the lease has actually been taken by the Chairman and the
issuance of notice of termination in furtherance of the decision taken by
the Chairman alone, has been delegated to the Land Manager. Our attention
is also invited to Office Order No. 6480/3/0 dated 22.01.1990, which reads
as under: -
“CALCUTTA PORT TRUST
No. 6480/3/0 January 22, 1990
OFFICE ORDER
Henceforth ejectment (sic) notices in respect of leases determined
with my approval may be signed by any one of the undernoted officers:
Calcutta
1) Deputy Chairman (Calcutta)
2) Land Manager
Haldia
1) Deputy Chairman (Haldia)
2) General Manager (Mas)
3) Manager (I&C.F)”
16. The power that is delegated to the Chairman as per Resolution No. 82
is the power to terminate a lease. The decision to terminate has been taken
by the Chairman only and there is no dispute in that regard. In
implementation of the decision thus taken by the Chairman to terminate the
leases, the Chairman has authorized the Land Manager to issue the ejectment
notices. The issuance of such notices is a mere ministerial act for the
implementation of a decision already taken by the Chairman as delegated by
the Board. The Chairman having duly authorized the Land Manager in that
regard, it cannot be said that the ejectment notice issued by the Land
Manager is without jurisdiction. It is not a case of sub-delegation. It is
merely a ministerial exercise of issuance of a notice in implementation of
the decision, as per the specific authorization in that regard.
17. The situation can be viewed from another angle as well. Section 21 of
The General Clauses Act, 1897 provides that power to issue would include
power to add, amend, vary or rescind. The provision reads as follows:
“21. Power to issue, to include power to add to, amend, vary or
rescind notifications, orders, rules or bye-laws.-Where, by any
Central Act or Regulations a power to issue notifications, orders,
rules or bye-laws is conferred, then that power includes a power,
exercisable in the like manner and subject to the like sanction and
conditions (if any), to add to, amend, vary or rescind any
notifications, orders, rules or bye-laws so issued.”
18. Admittedly, in the case of the petitioners, the lease deed has been
executed by the Land Manager. The execution of the lease deed is as per the
decision by the competent authority. If that be so, the lease can be
terminated by the same authority who executed the lease deed, after a
decision has been made in that regard by the competent authority. In P.
Saibaba Rao S/o Amruth Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and
Dr. N. Sudhakar Rao S/o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa Rao
S/o Swami Rao and Ors.[6] High Court of Andhra Pradesh considered the
situation of termination of a contract. The contention was that the
Superintendent Engineer was not competent to terminate the contract in
terms of the guidelines. His authority was only to execute the contract.
Negating the same, it was held as follows:
“It is very interesting to notice that entry 5(b) of the
Government order as above speaks of instruments relating to execution
of works including Highways. The officer authorized to execute these
instruments among others is SE. Chapter II of PWD Code deals with,
"Works". It contains paragraphs 88 to 224. Nowhere has it mentioned
any authority, who is conferred with power to terminate/cancel the
contract entered into by SE as per Paragraph 159 of PWD Code read with
executive instructions. Petitioners have failed to bring any evidence
in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965, it
was clarified that SE is competent to execute contracts and piece work
agreements upto the limit of tenders accepted by the competent
authority regardless of whether they were accepted by SE and
irrespective of restrictions imposed on the powers of SE in the matter
of acceptance of contract. This means that SE is competent to enter
into contract and also for terminating/ closing/cancelling the
contract. The power to enter into contracts or the authorisation to
execute instruments also includes the power to execute contracts or
instruments cancelling a contract. It may also be noticed that under
preliminary specification Nos. 7 and 8 of APSS, SE is competent to
alter the standard specifications for a particular contract. Thus
authorization given to SE under G.O.Ms. No. 1632, dated 24.10.1958, is
all pervasive and the same cannot be interpreted in a restrictive
manner.”
We respectfully endorse the legal principle.
19. We do not find any legal infirmity in the impugned notices issued by
the Land Manager of the Kolkata Port Trust, as noted by the Division Bench
of the Calcutta High Court, in the impugned judgment. The power is
exercised only as duly authorized by the Chairman. The Land Manager is also
otherwise competent to issue notices after due decision has been taken in
that regard by the competent authority since he is the one who executed the
lease deed. There is no merit in these Petitions.
20. The Special Leave Petitions are hence dismissed. There is no order
as to costs.
…………….…..…………J.
(GYAN SUDHA MISRA)
.……..……………………J.
(KURIAN JOSEPH)
New Delhi;
April 16, 2014.
-----------------------
[1] (1974) 4 SCC 98
[2] Harishanker Bagla v. State of M.P. – (1955) 1 SCR 380 (Page 388)
Agricultural Market Committee v. Shalimar Chemical Works Limited –
(1997) 5 SCC 516 (Paragraph 24)
[3] Khambalia Municipality v. State of Gujarat – AIR 1967 SC 1048
(P.1051)
[4] (2003) 4 SCC 257
[5] AIR 1967 SC 295
[6] Election Petition Nos. 1 and 3 of 2004, Judgment dated 30.08.2007.
-----------------------
REPORTABLE
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16
