S. Arunachalam and Others vs State of Tamil Nadu and Others

K.A. Swami, C.J.—In all these writ petitions, the petitioners have sought for quashing the Government Order, G.O.Ms.No. 542, Local

Administration and Water Supply Department, dated 29-4-1986. They have also sought for consequential relief flowing from quashing of the

aforesaid Government Order.

The said Government Order (Translated copy) reads thus:

GOVERNMENT OF TAMIL NADU: M

ABSTRACT

Municipalities and Corporation -- records -- sending of objection to the Registration Department within 45 days when layout sites are sold or

brought to Registration -- Instructions -- issued -- order.

MUNICIPAL ADMINISTRATION AND WATER SUPPLY DEPARTMENT

G.O.Ms.No. 542 Dated: 29-4-1986

ORDER

It is felt that an amendment need to be brought so as collect the development charges from the plot owners for the purpose of providing street

roads, street lights and drainage facilities etc. at the time of registering the documents. It is seen that the property developers, taking advantage of

the prevailing rules and regulations are selling the lands which are outside the town without adequate facilities like drainage etc. and by buying them

for lessor price and selling for good price and thus they earn very good profit. Therefore, the buyers of the said house plots are forced to bear the

expenses for providing the facilities mentioned above. However, not every one of the owners is in a position to bear the same. Therefore, it has

been decided that unless and until an amendment is brought to the Registration Act to the effect that the registration of house sites should be done

only after getting No Objection Certificates, from the concerned Panchayat/Municipality or Corporation, no useful purpose will be served.

Since the proposed amendment to the Registration Act would affect the number of documents to be registered, pending appropriate amendments

to the Municipalities, it has been decided to follow the undermentioned advice.

It has been advised to the respective Commissioners of Panchayat, Town Panchayat, Municipality and the Corporation concerned to inform about

their objections or no objections within 45 days to the Sub-Registrar from the date on which the Sub-Registrar''s notice is received to the effect

whether there is any objection to the proposed registration of sale of house sites.

Similarly, the Registration Department is advised to await for the objection from the concerned Municipality/Panchayat Town Panchayat and

Corporation etc. for a period of 45 days from the date on which the notice has been served on them and then register the documents.

It is hereby ordered that the Municipalities and Corporation should follow the instructions given above.

It is relevant to notice that registration of documents governed by the Registration Act (Central), (for short the Act) and the Rules framed

thereunder. The Act and the Rules framed thereunder prescribe the procedure to be followed for registration of documents. Thus, this is a field

which is covered by Law of Registration. However, the State Government, in the purported exercise of their power under Article 162 of the

Constitution, as contended by the learned Government Pleader, has issued the impugned Government Order. In the counter affidavit filed by the

first respondent, it has been stated in categorical terms thus:

In this connection, I submit that action has already been taken for amending the provisions of the relevant Act giving effect to the central idea

contained in the Government Orders above referred to and it is needless to say to the context that the departments concerned have taken

necessary action to amend the relevant provisions of the Act suitably. This course of action will no doubt consume considerable time to achieve the

object. In view of the anxiety in giving effect to the decision of the Government, it was thought fit to issue executive instructions and accordingly

orders were issued in the above Government Order.

Thus, the State has tried to exercise its executive power in respect of the matter, which is covered by the Registration Act and the Rules framed

thereunder There is no doubt that the legislative power of the State extends to all matters in respect of which the State Legislature has power to

make laws. But from this, it does not follow that the executive power of the State can be exercised in respect of the matter which is covered by the

law enacted by the competent Legislature and the Rules framed thereunder. The law so enacted by the competent Legislature and the rules framed

thereunder are to be scrupulously followed by all concerned including the State Government. Thus the executive power of the State cannot be

exercised over the subject occupied by law passed by the competent Legislature which is otherwise known as Theory of Occupied Field. The

Supreme Court in B.N. Nagarajan and Others Vs. State of Mysore and Others, while considering the scope of executive power of the State under

Article 162 of the Constitution, has observed thus:

It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that Act or rule and it cannot in

exercise of the executive power under Article 162 of the Constitution ignore or act contrary to that rule or Act.

Similar question arose before a Division Bench of this Court to which both of us were parties, in V. Chandra v. Government of Tamil Nadu and

Ors., ILR 1996 Mad. 1007 in which the State Government in the purported exercise of their executive power had issued Government Orders in

respect of the matters covered by the laws enacted by the State Legislature. It has been held by us as follows:

We have adverted to these provisions contained in these aforesaid three enactments and also the rules framed under the Tamil Nadu Panchayats

Act, only to show that the subject with which the impugned Government Orders have dealt with is covered by the statutes passed by the State

Legislature. It is the settled position of law that the executive power under Article 162 of the Constitution is not available in respect of the subject,

which is already covered by the legislation. In other words, a field covered by the enactment which is known as covered field cannot be meddled

with the executive in the purported exercise of their power under Article 162 of the Constitution. This has been specifically provided for with a

view to ensure that the State also is not above the Rule of Law and above the provisions contained in the Constitution.

The Supreme Court in Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, considered the scope and ambit of the executive

power, under Article 162 of the Constitution and also the executive functions of the State Government. The relevant portion of the judgment

contained in para 13 is as follows:

The limits within which the executive Government can function under the Indian Constitution can be ascertained without much difficulty by

reference to the form of the executive which our Constitution has set up. Our Constitution though federal in its structure, is modelled on the British

Parliamentary System where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its

transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of

the State.

The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of

legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying or on

supervision of the general administration of the State.

Subsequently, in B.N. Nagarajan and Others Vs. State of Mysore and Others, the Supreme Court has observed that it is necessary to mention

that if there is a statutory rule or an Act on the matter, the executive must abide by that Act or rule and it cannot in exercise of the executive power

under Article 162 of the Constitution ignore or act contrary to that rule or act. Therefore, it is clear that the impugned Government Orders not only

to cover the field covered by the legislature by enacting statutes as pointed above, but are also contrary to the provisions contained in those

statutes. There is no such procedure or condition imposed by the various enactments referred to by us above. Thus, this is a case in which the

executive has not only tried to exercise the power which was no more available to it, but also exercise such power quite contrary to the provisions

contained in the aforesaid enactments. This is sufficient for the purpose of disposing of these writ petitions. Though several contentions have been

urged above the validity of the several provision contained in the Government Orders, we do not propose to deal with any one of them as the very

exercise of the power under Article 162 of the Constitution, is bad in law and as such we keep open all other contentions.

Thus, the State Government has overstepped their power by issuing the impugned Government Order in their purported exercise of power under

Article 162 of the Constitution. If the State Government felt that there was urgency in the matter it would have very well resorted to the provisions

relating to the issuance of ordinance. It is also very interesting to notice that even after a lapse of 10 years, no such law is passed. Fortunately for

the petitioners, interim orders have been passed in these writ petitions. Therefore, the registration of documents is taking place in accordance with

the provisions of the Registration Act and the Rules framed thereunder and any other law governing the matter.

In this view of the matter, we find it difficult to accept the contention of the learned Government Pleader that the Government Order has been

issued in exercise of the executive powers in order to urgently meet the situation, therefore it is valid. Accordingly, the contention of the learned

Government Pleader is rejected.

For the reasons stated above, these writ petitions are allowed. The impugned Government Order G.O.Ms.No. 542, Local Administration and

Water Supply Department, dated 29.4.1986 is quashed. Of course it hardly requires to be clarified that our decision does not come in the way of

the competent legislature enacting appropriate legislation. No costs.

We make it clear that the actions taken pursuant to the interim orders passed in these cases are not liable to be disturbed.