advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, April 17, 2014

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.= SIDHARTHA SARAWGI … PETITIONER (S) VERSUS BOARD OF TRUSTEES FOR THE PORT OF KOLKATA AND OTHERS … RESPONDENT (S) = 2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41420

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


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.