ISHWARLAL GIRDHARLAL JOSHI ETC. versus STATE OF GUJARAT & ANR.

Citation: [1968] 2 S.C.R. 267 · Decided: 16-11-1967 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
JSHWARLAL GIRDHARLAL JOSHI ETC. 
v. 
STATE OF GlJ.JARAT & ANR. 
Nol'e/11/Jt'r 16, 1967 
B 
fl\1. JllllAYATULLAII, V:BHARGAVA AND C. A. VAIDIALINGAM, JJ.J 
c 
D 
F 
G 
Constitution of India, 1950, Art. 166 and Rules of Business, rr. 7, 10, 
13 and IS-Notifications under Land Acquisition Act (! of 1894)-
H'/H'!her cu:tld be signed by an Under Secretary-Fnnnation of opinion 
regarding urgency and nalllre of /and-Wheth<r could be delegated 
to 
Secretary-Standing Orders, if necessary-Arable land, meaning "f, 
By a notification under s. 4 of the Land Acquisition Act issued on 
March 10, 1965 the respondent State Government notified that certain 
lands were needed for a public purpose, namely, the construction of the 
State capital, that the Qoverrunent was satisfied that they were 'arable 
lands' and further directed under s. 17(4) of the Act, that as the acquisi-
tion of the lands was urgently .11ecessary, the provisions of s. SA would 
not appjy. 
Thereafter, a notification was issued under s. 6 containing a 
direction under s. 17(1) of the Act enabling the Collector to take posses-
sion of all the ~rable lands on the expiry of 15 days from the publication 
of the notice under s. 9(1) of the Act. 
Both Notifications were signed 
by an Under Secretary of the respondent-Government. 
The .petitioners challenged the notifications ·in writ petitions under 
Art. 226. 
In the original affidavits, the petitioners merely asserted that 
the Government had not mad.e up its mirid regarding the acquired lands 
as to urgency and that the lands were not arable. 
The parti.,. filed a 
number of affidavits at various stages of the hearing, the Government in 
order tO establish tjlat everything \Vas regularly done, 
while the 
peti~ 
tioners alleged infractions. In one of the affidavits on behali of the Gov-
ernment it was stated that the Minister-in-charge 
gave oral instructions 
to the -Secretary that he or his under-secretaries may take action under 
s. 17 ( 1) and ( 4) of the Act according to law, that the Secretary was 
satisfied regarding urgency and gave inst£11ctions to the Under Secretary 
to take the necessary action. The High Court after considering the affi-
davits, dismissed the petitions. 
In appeal to this Court it was 
contended that: (i) only a Secretary 
could sign the notifications and that the Under Secretary who signed the 
notification under s. 6 was not duly authorised to do so; (ii) that there 
was no formation of opinion by the Government as regards urgency or 
that the lands were arable; (iii) that this function could not be delegated 
to the Secretary and even if it could be delegated, a general oral instruc-
tion given by the ?vfinister was not according to the proceJ\lre prescribed 
by the Rules of Business; (iv) that since the lands in question were under 
cultivation, they were not waste or arable lands; and (v) that sub-SS. ( t) 
and (4) of.s. 17 of the Act were violative of Arts. 14 and 19(\)(f) of 
the Constitution: 
1JELD : Disrni~sing the petitions. 
H 
(I) 'fhc V.lord ·secretary' is not· dc·fincd in the Land· Acquisition Act 
or the General Clauses Act so as to exclude Additional, Joint, Deputy. 
Under or Assistant Secretaries. 
On the <.ither har1d. r.lJ rif the Rules of 
Business fro.n1ed under Art. 166 of the Conslituti<Jn specifically places a 
268 
SUPREME COURT REPORTS 
[l%8j 2 S.CR. 
Secretary, Joint Secretary, Deputy Sc~rctary, Un.der Secretary and Assistant 
Secretary on equality for authenticaoon of orders and 
wt~ents . of 
Government. 
The Under Secretary was, thereforo, competent to Sign 
the notifications. 
[273F; 274E] 
Even if he did not possess the power as a Secretary he viould have 
been competent as an officer 'duly authorised', within the meaning of s. 6 
of the Act, by virtue of r. 13 of the Rules of Business. [274F] 
· 
(il) Under Art. 166 of the Constitution the validity of the notification 
could not be called in question on the ground that it was not an order 
made by the Governor, because, as required by the Article _the executive 
action of the Government was expressed to be taken in the name of the 
Governor and the order was authenticated in the manner required by r. 13 
of the Rules of Business. In addition, there is also the presumption of 
regularity of official acts. Therefore, the bare assertion that Government 
had not formed an opinion could not raise an issue. 
The Government 
was not called upon to answer the affidavit of the petitioners and 
the 
Government 

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