Page 1 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)

1

REPORTABLE

Page 2 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

2

Page 3 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

1

(1974) 4 SCC 98

3

Page 4 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

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)

4

Page 5 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.

3

Khambalia Municipality v. State of Gujarat – AIR 1967 SC 1048

(P.1051)

5

Page 6 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

4

(2003) 4 SCC 257

6

Page 7 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

Page 8 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

5

AIR 1967 SC 295

8

Page 9 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

9

Page 10 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

10

Page 11 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.”

11

Page 12 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:

12

Page 13 “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:

13

Page 14 “.. 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)

14

Page 15 (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.

15

Page 16 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

6

Election Petition Nos. 1 and 3 of 2004, Judgment dated 30.08.2007.

16

Page 17 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.”

17

Page 18 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.

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