Meghraj Kothari vs Dehmitation Commission of India and Others

G.K. Mitter, J.—This is an appeal by special leave from a judgment and order, dated February 25, 1965 of the Madhya Pradesh High Court at Jabalpur in Miscellaneous Petition No. 72 of 1965. The High Court summarily dismissed the petition under Article 226 of the Constitution praying for a writ of certiorari for queshing a notification issued in pursuance of Sub-section (1) of Section 10 of the Delimitation Commission Act, 1965 in respect of the delimitation of certain Parliamentary and Assembly constituencies in the State of Madhya Pradesh. The petition was rejected on the short ground that under Article 329 (a) of the Constitution the said notification could not be questioned in any Court. Article 329-which is relevant for our purpose-reads:

Not withstanding anything in this constitution

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any Court.

Before us it was contended that the notification referred to is not law and secondly it was not made under Article 327 of the Constitution.

The facts are shortly as follows: The Petitioner is a resident of Ujjain and a citizen of India. He had been a voter in all the previous general elections and still claims to be a voter in Daulatganj, Ward No. 5 in the Electoral Roll of Ujjain. He claims, to have a right to contest the election to any Assembly or Parliamentary constituency in the State of Madhya Pradesh. The impugned notification which was published in the Gazette of India Extraordinary on July 24, 1964 shows Ujjain as a constituency reserved for the scheduled castes. It was made in pursuance of Sub-section (1) to Section 10 of the Delimitation Commission Act, 1962 and recites that proposals of the Delimitation Commission for the delimitation of Parliamentary and Assembly Constituencies in the State of Madhya Pradesh had been published on October 15, 1963 in the Gazette of India and in the official gazette of the State of Madhya Pradesh and that after Considering all objections and suggestions the Commission determined that the territorial constituencies into which the State of Madhya Predesb shall be divided for the purpose of elections to the House of the People and the extent of each such constituency shall be as shown in Table A.

Respondent No. 1 to the petition was the Delimitation Commission, Respondent No. 2 was its Chairman and Respondents Nos. 3 and 4 were its members. The petition alleges many acts of omission and commission on the part of the Commission and its Chairman, but we are not here concerned with all that. If we come to the conclusion that the High Court was not justified in rejecting the petition on the short ground noted above, we shall have to send the case back to the High Court for trial on merits. According to the Petitioner, Ujjam city has been from the inception of the Constitution of India a general constituency and by the fact of the city being converted into a reserved constituency his right to be a candidate for Parliament from this constituency has been taken away.

In order to appreciate the working of the Delimitation Commission and the purpose which it serves reference must be made to the following Articles of the Constitution. Article 82 provides that-

Upon the completion of each census, the allocation of seats in the House of the People to the States and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine:

Provided that such readjustment shall not affect representation in the House of the People until the dissolution of the then existing House.

This Article is a verbatim copy of Clause (3) of Article 81 of the Constitution before its amendment in 1956.

Article 327 of the Constitution provides that-

Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

It was argued before us that the Delimitation Commission Act was not passed by Parliament under Article 327, but under Article 82 and as such Courts of law are not precluded from entertaining the question as to the validity of a notification under the Delimitation Commission Art because of the opening words of Article 329. Article 82, however, merely envisages that that upon the completion of each census the allocation of seats in the House of the People and the division of each State into territorial constituencies may have to be readjusted. It is Article 327, which enjoins upon Parliament to make provision by law from time to time with respect to all matters relating to or in connection with election to either House of Parliament...delimitation of constituencies and all other matters necessary tor securig the due constitution of such House or Houses.

The preamble to the Delimitation Commission Act, 1962, shows that it is an Act to provide for the re-adjustment of the allocation of seats in the House of the People to the States, the total number of seats in the Legislative Assembly of each State, the division of each State into territorial constituencies for elections to the House of the People and Legislative Assemblies of the States and for matters connected therewith. Article 82 only fore-shadows that readjustment may be necessary upon completion of each census, but Article 327 gives power to Parliament to made elaborate provision for such readjustment including delimitation of constituencies and all other matters connected therewith as also elections to either House of Parliament. Section 3 of the Delimitation Commission Act (hereinafter referred to as the Act) enjoins upon the Central Government to constitute a Commission to be called the Delimitation Commission as soon as may be after the commencement of the Act. Section 4 of the Act provides that it is the duty of the Commission to readjust on the basis of the latest census figures the allocation of seats in the House of the People, to the several Stats ...and the division of each State into territorial constituencies for the purpose of elections to the House of the People. Section 8 of the Act makes it obligatory on the Commission to determine by order, on the basis of the latest census figures, at d having regard to the provisions of Articles 81,170, 330 and 332, the number of seats in the House of the People to be allocated to each State and the number of seats, if any, to be reserved for the Scheduled Castes and for the Sheduled Tribes of the State as also the total number of seats to be assigned to the Legislative Assembly of each Slate and the number of seals, if any, to be reserved for the Scheduled Castes and for the Scheduled Tribes of the State The delimitation of the constituencies is provided for in Section 9 Sub-section (1) of the Act which reads:

The Commission shall in the manner herein provided, then distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each Slate to single member territorial constituencies and delimit them on the basis of the latest census figures, having regard to the provisions of the Constitution and to the following provisions, namely:

(a) all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries of administrative units, facilities of communication and public convenience;

(b) every assembly constituency shall be so delimited as to fall wholly within one parlamentary constituency;

(c) constituencies in which seals are reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is comparatively large; and

(d) constituencies in which seats are reserved for the Scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total is the largest.

Under Sub-section (2) of the section the Commission shall publish its proposals for the delimitation of the constituencies together with the dissenting proposals, if any, of an associate member, specify a date on or after which the proposals will be further considered and consider all objections and suggestions which may have been received by it before the day so specifies. Thereafter its duty is by one or more orders to determine the delimitation of Parliamentary constituencies and the delimitation of assemply constituencies of each State. Publicity is to be given to the orders of the Commission u/s 10 (1) of the Act. Sub-section (1) prescribes that each of its orders made u/s 8 or Section 9 is to be published in the Gazette of India and the official gazettes of the States concerned. Sub-section (3) provides that as soon as may be after such publication every such order shall be laid before the House of the People and the Legislative Assemblies of the States concerned.

The legal effect of the orders is given in Sub-sections (2) and 4 of Section 10 of the Act. Under Sub-section (2) "upon publication in the Gazette of India, every such order shall have the force of law and shall not be called in question in any Court". Under Sub-section (4) (omitting the irrelevant portion)

The readjustment of representation of the several territorial constituencies in the House of the People or in the Legislative Assembly of a State and the delimitation of those constituencies provided for in any such order shall apply in relation to every election to the House or to the Assembly, as the case may be, held after the publication in the Gazette of Indian of that order and shall so apply in supersession of the provisions relating to such representation and delimitation contained in the Representation of the People Act, 1950 and the Delimitation of Parliamentary and Assembly Constituencies Order, 1961.

It will be noted from the above that it was the intention of the Legislature that every order Under Sections 8 and 9 after publication is to have the force of law and not to be made the subject-matter of controversy in any Court. In other words, Parliament by enacting Section 10 (2) wanted to make it clear that orders passed Under Sections 8 and 9 were to be treated as having the binding force of law and not mere administrative directions. This is further reinforced by Sub-section (4) of Section 10 according to which the readjustment of representation of the several territorial constituencies in the House of the People and the delimitation of those constituencies provided for in any such Order (i. e. u/s 8 or Section 9) was to apply in relation to every election to the House held after the publication of the order in the Gazette of India and these provisions contained in the order were to supersede all provisions relating to such representation and delimitation contained in the Representation of the People Act, 1950 and the Delimitation of Parliamentary and Assembly Constituencies Order, 1961. In effect, this means the complete effacement of all provisions of this nature which were in force before the passing of the orders Under Sections 8 and 9 and only such or lers were to hold the field. Therefore although the impugned notification was not a statute passed by Parliament it was a law relating to the delimitation of constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution.

Our attention was drawn to Bill No. 98 of 1962 for providing for readjustment of allocation of seats in the House of the People, to the States, the total number of seats in the Legislative Assembly of each State, the division of each State into territorial constituencies for election to the House of the People and Legislative Assemblies of the States and for matters connected therewith and the statement of objects and reasons therefor as appearing in the Gazette of India Extraordinary, Part II, Section 2 of the year 1962 which mentions Articles 82 and 170 (3) of the Constitution. The said statement further shows that as the 1961 census had been completed a readjustment of the several matters earlier mentioned was necessary inasmuch as there had been a change in the population figures from the 1951 census. This, however, does not mean that the Delimitation Commission Act was a law made under Article 82. Article 82, as already noted, merely envisaged that readjustment might be necessary after each eensus and that the same should be effected by Parliament as it may deem fit, but it is Article 327 which casts a duty on Parliament specifically to make provision with respect to all matters relating to or in connection with elections to either House of Parliament etc., the delimitation of constituencies and all other necessary matters for securing the due constitution of such House or Houses.

With regard to Section 10 (2) of the Act it was argued by counsel for the Appellant that the order u/s 9 was to have the force of law. But such order was not itself a law. To support this contention our attention was drawn to a judgment of the Supreme Court of Canada in His Majesty the King v. William inger 1941 CLR. 11. There Sub-section (2) of Section 3 of the War Measures Act of 1914 provided that all orders and regulations made under this section shall have the force of law and shall be enforced in such manner and by such Courts, officers and authorities, as the Governor-in-Council may prescribe and may be varied, extended or revoked by any subsequent order or regulation. By Section 4 of the Act the Governor-in-Council was empowered to prescribe the penalties that may be imposed for violating the orders and regulations under this Act and also to prescribe whether such penalties shall be imposed upon summary conviction or upon indictment. Purporting to act under the provisions of the War Measures Act the Governor-in-Council made an order to the effect that no retail druggist shall sell or supply straight Codeine, whether in powder, tablet or liquid form, or preparations containing any quantity of any of the narcotic drugs mentioned in Parts 1 and 11 of the Schedule to the Opium and Narcotic Drug Act, mixed with medicinal or other ingredients, except upon the written order or prescription therefore signed and dated by a physician, veterinary surgeon or dentist. The order further provided that any person found in possession of Codeine or preparation containing narcotic drugs mentioned in Parts I and II of the Schedule to the Opium and Narcotic Drug Act mixed with other medicinal or other ingredients, save and except under the authority of a licence from the Minister of Pensions and National Health shall be liable to the penalties provided upon summary conviction under the provisions of Section 4 of the Opium and Narcotic Drug Act.

The Opium an Narcotic Drug Act which was a Dominion Statute contained a schedule wherein narcotic drugs were enumerated, but which up to the date of the order in question did not contain Codeine. Under the provisions of that order a charge was laid against the Respondent, a retail druggist, that he did without lawful excuse disobey an Act of the Parliament of Canada for which no penalty or other mode of punishment was expressly provided, to with Paragraph two of regulations dated 11th day of September, 1939, of the War Measures Act, by wilfully selling Codeine, a narcotic drug mentioned in Part two of the Schedule to the Opium and Narcotic Drug Act without first having had and obtained a written order or prescription therefore signed and dated by a physician, contrary to Section 164, Code of Criminal Procedure of Canda. Section 164 of the Code of Criminal Procedure enacted specifically that the offence must consist in wilfully doing any act which was forbidden or omitting to do any act which was required to be done by an Act of the Parliament of Canada. In his judgment Rinfret, J. observed (page 114)-

It is an Act of the Parliament of Canada which the guilty person must have disobeyed without lawful excuse.

His Lordship agreed with the trial Judge and with the majority of the Court of Appeal that in the premises Section 164 of the Code of Criminal Procedure had no application and said:

Of course, the War Measures Act enacts that the order and regulations made under it "shall have the force of law." It cannot be otherwise. They are made to be obeyed and as a consequence, they must have the force of law. But that is quite a different thing from saying that they will be deemed to be an Act of Parliament.

Taschereau, J. put the matter rather tersely (see at p. 124):

An Order in Council is passed by the Executive Council, and an Act of Parliament is enacted by the House of Commons and by the Senate of Canada. Both are entirely different, and unless there is a provision in the law stating that the Orders in Council shall be considered as forming part of the law itself, or that any offence against the regulations shall be a violation of the Act, it cannot be said that the violation of an Order in Council is a violation of an Act of Parliament within the meaning of Section 164 of the Code of Criminal procedure.

The observations from the judgment of Taschereau, J. point out the difference between something which has the force of law as distinguished from an Act of Parliament itself. The Order in Council in the Candian case, although it had the force of Jaw, was not a provision contained in an Act of Parliament and therefore although there was a violation of the Order in Council there was no violation of any section of an Act of the Parliament of the Dominion of Canada.

Counsel for the Appellant also drew our attention to the judgment of this Court in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, There the Court had to consider the effect of Section 103 of the Representation of the people Act, 1951 (Act XLIII of 1951) which provided that 'every order of the Tribunal made under this Act shall be final and conclusive". The contention there put forward was that this provision put an order of the Tribunal beyond question either by the High Court under Article 226 of the Constitution or by the Supreme Court in appeal therefrom. It was further submitted that the intention of the Legislature was that the decisions of the Tribunals were to be final on all matters whether of fact or of law, and they could not be said to commit an error of law when acting within the ambit of their jurisdiction. They decided what the law was. This submission was turned down by this Court and it was observed after referring to Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, at pp 6 and 7 : AIR 1955 SC 425 at pp 428-429 that "the Court laid down in general terms that the jurisdiction under Article 226 having been conferred by the Constitution, limitations cannot be placed on it, except by the Constitution itself."

In this case we are not faced with that difficulty because the Constitution itself provides under Article 329 (a) that any law relating to the delimitation of constituencies etc. made or purporting to be made under Article 327 shall not be called in question in any Court. Therefore an order u/s 8 or 9 and published u/s 10 (1) would not be saved merely because of the use of the expression "shall not be called in question in any Court". But if by the publication of the order in the Gazette of India it is to be treated as law made under Article 327, Article 329 would prevent any investigation by any Court of law.

In dismissing the petition under Article 226 of the Constitution the High Court of Madhya Pradesh relied exclusively on the decision of this Court in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, which proceeded on the basis of certain concessions made. There the Appellant was a perron who had filed a nomination paper for election to the Madras Legislative Assembly from the Namakkal constituency which was rejected. The Appellant thereupon moved the High Court under Article 226 of the Constitution praying for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to direct the said officer to include his name in the list of valid nominations to be published. The High Court dismissed the application on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of Article 329 (b) of the Constitution. The Court pointed out at page 225:

A notable difference in the language used in Arts. 327 and 328 on the one hand, and Article 329 of the other, is that while the first two articles begin with the words "subject to the provisions of this Constitution"., the last article begins with the words "notwithstanding anything in this Constitution". It was conceded at the Bar that the effect of this difference in language is that whereas any law made by Parliament under Article 327, or by the State Legislatures under Article 328, cannot exclude the jurisdiction of the High Court under Article 226 of the Constitution, that jurisdiction is excluded in regard to matters provided for in Article 329.

Reference was also made by counsel to certain other concessions which appear at pp. 233 and 237 of the report. It will be noted, however, that the decision in that case did not proceed on the concessions made. The Court examined at some length the scheme of Part XV of the Constitution and the Representation of the People Act, 1951 which was passed by the- Parliament under Article 327 of the Constitution to make detailed provision in regard to all matters and all stages connected with elections to the various Legislatures in the country. It was there argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it could not bar the jurisdiction of the High Court to issue writs under Article 226 of the Constitution. This was turned down by the Court observing:

This argument, however, is completely shut out by reading the Act along with Article 329 (b): It will be noticed that the language used in that Article and in Section 30 of the Act is almost identical, with this difference only that the Article is preceded by the words "nothwithstanding anything in this Constitution. [P. 232]

The Court went on to observe at p. 233

It may be pointed out that Article 329 (b) must be read as complementary to Clause (a) of that Article Clause (a) bars the jurisdiction of the Courts with regards to such law as may be made under Articles 327 & 328 relating to the delimitation of constituencies of the allotment of seats to such constituencies.... If Part XV of the Constitution is a code by itself, i. e. it creates rights and provides for their enforcement by a special tribunal to the exclusion of shall Courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject-matter of contest before the High Courts and thereby upset the time schedule of the elections. The more reasonable view seems to be that Article 329 covers all "electoral matters".

An examination of Sections 8 and 9 of the Act shows that the matters therein dealt with were not to be subject to the scrutiny of any Court of law. Section 8 which deals with the readjustment of the number of seats, shows that the Commission must proceed on , the basis of the latest latest census figures and by order determine having regard to the provisions of Articles 81, 170, 330 and 332, the number of seats in the House of the People to be allocated to each State and the number of seats, if any, to be served for the Scheduled Castes and for the Scheduled Tribes of the State. Similarly, it was the duty of the Commission u/s 90 distribute the seats in the House of the People allocated to each State and the seats assigned to the Legislative Assembly of each State to single member territorial constituencies and delimit them on the basis of the latest census figures having regard to the provisions of the Constitution and to the factors enumerated in Clauses (a) to (d) of Sub-section (1). Sub-section (2) of Section 9 shows the the work done under Sub-section (1) was not to be final, but that the Commission (a) had to publish its proposals under Sub-section (1) together with the dissenting proposals, if any, of an associated member, (b) to specify a date after which the proposals could be further considered by it, (c) to consider all objections and suggestions which may have been received before the date so specified, and for the purpose of such consideration, to hold public sittings at such place or places as it thought fit. It is only then that the Commission could by one or more orders, determine the delimitation of Parliamentary constituencies as also of Assembly constituencies of each State.

In our view, therefore, the objection to the delimitation of Constituencies could only be entertained by the Commission before the date specified. Once the orders made by the Commission Under Sections 8 and 9 were published in the Gazette of India and in the official gazettes of the States concerned, these matters could no longer be reagitated in a Court of law. There seems to be very good reason behind such a provision, If the orders made Under Sections 8 and 9 were not to be treated as final, the effect would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from Court to Court. Section 10 (2) of the Act clearly demonstrates the insertion of the Legislature that the orders Under Sections 8 and 9 published u/s 10 (1) were to be treated as law which was not to be questioned in any Court.

It is true that an order u/s 8 or 9 published u/s 10 (1) is not part of an Act of Parliament, but its effect is to be the same.

The situation here bears some comparsion with what obtained in Harishankar Bagla and Another Vs. The State of Madhya Pradesh, There Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, provided that the Cenral Government, so far as it appeared to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at their prices might by order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. u/s 4 it was open to the Central Government by notified order to direct that

the power to make orders u/s 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by such officer or authority subordinate to the Central Government or such State Government or such officer or authority subordinate to a State Government as may be specified in the direction.

Section 6 of the Act read as follows:

Any order made u/s 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act.

Under powers conferred by Section 3 the Central Government promulgated on September 10, 1948, Cotton Textiles (Control of Movement) Order, 1948 Section 3 of the said order provided that no person shall transport or cause to be transported by rail, road, air, sea or inland navigation any cloth, yaro or apparel except under and in accordance with a general permit notified in the Gazette of India by the Textile Commissioner or a special transport permit issued by the Taxtile Commissioner. The Appellant Harishankar Bagla and his wife were arrested at Itarsi by, the Railway police for contravention of Section 7 of the Essential Supplies (Temporary Powers) Act, 1946 read with Clause 3 of the Cotton Textiles (Control of Movement) Order 1948, having been found in possession of new cotton cloth weighing over six maunds which was being taken by them from Bombay to Kanpur without any permit. The State of Madhya Pradesh contended before this Court that the judgment of the High Court that Section 6 of the Act was unconstitutional was not justified. This contention was upheld by this Court and it was observed:

By enacting Section 6 Parliament itself has declared that an order made u/s 3 shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act. This is not a declaration made by the delegate but the Legislature itself has declared its will that way in Section 6.... The power of the delegate is only to make an order u/s 3. Once the delegate has made that order its power is exhausted. Section 6 then stops in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency there with contained in any enactment other than this Act.

Similarly it may be said here that once the Delimitation Commission has made orders Under Sections 8 and 9 and they have been published u/s 10(1), the orders are to have the same effect as if they were law made by Parliament itself.

Reference was also made by counsel for the Respondent to the judgment of this Court in Kailash Nath and Another Vs. State of U.P. and Others, . There u/s 4 of the U.P. Sales Tax Act, the State Government was empowered either to exempt certain kinds of transactions from the payment of sales tax completely, or to allow a rebate of a portion of the tax payable. In pursuance of that, the Uttar Pradesh Government issued a notification that With effect from December 1, 1948 the Provisions of Section 3 of the Act (relating to the levy of sales tax) shall not apply to the sales of cotton cloth or yarn manufactured in Uttar Pradesh made on or after December 1, 1949 with a view to export such cloth or yarn outside the territories of India on the condition that the cloth or yarn is actually exported and proof of such actual export is furnished. It was held by this Court that "this notification having been made in accordance with the power conferred by the statute has statutory force and validity and, therefore, the exemption is as if it is contained in the parent Act itself".

In K. Kankarathnamma and Others Vs. State of Andhra Pradesh and Others, the question for consideration by this Court was the effect of a notification of the President of India under Article 258 (1) of the Constitution. The President of India by a notification, dated July 24, 1959, under Article 258 (1) of the Constitution entrusted with the consent of the Government of Bombay to the Commissioners of Divisions in the State of Bombay the functions of the Central Government in relation to the acquisition of land far the purposes of the Union. Two new States were constituted by the Bombay Reorganisation Act (XI of 1960) and the Baroda Division was allotted to the State of Gujrat. In exercise of the powers entrusted by the notification issued by the President on July 24, 1959, the Commissioner of the Baroda Division notified u/s 4(1) of the Land Acquisition Act (1 of 1894) the Appellant's land as being needed for a public purpose and authorised the Special Land Acquisition Officer, Ahmedabad, to perform the functions of the Collector under the Act. The Special Land Acquisition Officer after considering the objections raised by the Appellant submitted his report to the Commissioner who issued a declaration u/s 6(1) of the Act. The Appellant then moved the High Court of Gujrat under Articles 226 and 227 of the Constitution for a writ, but his petition was dismissed His case Inter alia was that the President's notification under Article 258 (1) was ineffective after the partition since the consent of the Government of the newly formed State of Gujrat to the entrustment of functions to its officers had not been obtained as required by Article 258 (1).

Article 258 (1) of the Constitution reads-

notwithstanding anything in this Constitution the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any nutter to which the executive power of the Uman(sic) extends.

One of the contentions put forward before this Court was that the power exercised by the President was executive in character and the functions which might be entrusted to a State Government under Article 258 (1) were executive and as such entrustment of such executive authority was not law within the meaning of Section 87 of the Bombay Reorganisation Act which made provisions for maintaining the territorial extent of the laws even after the appointed day. On this basis, it was argued that the Commissioners in the new State of Gujrat after May 1, 1960 were incompetent by virtue of the Presidential notification to exercise the functions of the Union under the Land Acquisition Act.

It was observed by the majority Judges of this Court at P. 308.

The question which must be considered is whether the notification issued by the President is law within the meaning of Section 87 read with Section 2 (d) of the Bombay Reorganisation Act. 11 of 1960.

After analysing the three stages of the constitutional process leading to the ultimate exercise of function of the Union Government the Court observed (at p. 309 S C R 657 of AIR):

By Art. 58 the executive power of the Union is vested in the President and is exercisable by him either directly or through officers subordinate to him in accordance with the Constitution and the executive powers of the Union by Article 73 extends subject to the provisions of the Constitution:

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreements ;

Provided that the executive power referred to in Sub-clause (a) shall not, save as expressly provided in the Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has power to make laws. Prima facie, the executive power of the Union extends to all matters with respect to which Parliament has power to make laws and in respect of matters to which the power of the Parliament extends.

The Court then went on to consider the nature of the power exercised by the President under Article 258 (sic). It noted that by item 42, List III the subject of acquisition of property fell within the Concurrent List and the Union Parliament had power to legislate in respect of acquisition of property for the purposes of the Union and by Article 73 (1) (a) the executive power of the Union extended to the acquisition of property for the Union. It was observed that "by Article 298 of the Constitution the executive power of the Union extends to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose. The expression

Acquisition, holding and disposal of property would, in our judgment, include compulsory acquisition of property. That is a provision in the Constitution which within the meaning of the proviso to Article 73 (1) expressly provides that the Parliament may acquire property for the Union and consequently executive power of the Union in relation to compulsory acquisition of property is saved thereby, power of the State to acquire land notwithstanding.

Reference was also made by the majority Judges to the case of The Edward Mills Co. Ltd., Beawar and Others Vs. The State of Ajmer and Another, where it was held that an order made u/s 94 (3) of the Government of India Act, 1935, was, notwithstanding the repeal of the Government of India Act, 1935, by Article 395 of the Constitution, law in force. Finally, it was held by the majority of Judges (P. 315):

We see no distinction in principle between the notification which was issued by the The Edward Mills Co. Ltd., Beawar and Others Vs. The State of Ajmer and Another, , and the notification with which we are dealing in this case. This is not to say that every order issued by an executive authority has the force of law. If the order is purely administrative, or is not issued in exercise of an statutory authority it may not have the force (sic)of Jaw but where a general order is issued even by an, executive (sic)authority which confers power exercisable under a statute, and Which thereby in substance modifies or adds to the statute, such confsrment of powers must be regarded as having the force of law.

In this case it must be held that the orders u/s 8 and 9 published u/s 10(1) of the Delimitation Commissi oh Act were to make a complete set of rules which would govern the readjustment of number of seats and the delimitation of constituencises.

In this case the powers given by the Delimitation Commission Act and the work of the Commission would be wholly nagatory unless the Commission as a result of its deliberations and public sittings were in a position to readjust the number of seats in the House of the People or the total number' of seats to be assigned to the Legislative Assembly with reservation for the Scheduled Castes and Scheduled Tribes and the delimitation of constituencies. It was the will of Parliament that the Commission could by order publish is proposals which were to be given effect to in the subsequent" election and as such its order as published in the notification of the Gazettee of India, or, the Gazettee of the State was to be treated as law on the subject.

In the instant case the provision of Section 10(4) of the Act puts orders Under Sections 8 and 9 as published u/s 10(1) in the same street as a law made by Parliament itself which, as we have already said, could only be done under Article 327, and consequently the objection that the notification was not to be treated as law cannot be given effect to.

SS