AI Structured Summary
Not yet generated for this judgment
Judgment
Chandra Reddy, C.J.—A resident of a village called Telungan Kudikadu, Tanjore Dt. seeks the removal of a notification issued by the Joint
Development Commissioner, appointed as Inspector of Local Boards and Panchayats for purposes of S. 3of the Act, 35 of 1958, bifurcating
Telungan Kudikadu into two panchayats on certiorari. The facts as emerge from the available material are briefly these. Telungan Kudikadu
Panchayat consists of two villages Telungan Kudikadu and Orathiran Kudikadu. Having regard to the deep hatred and enmity existing between
two sections of this Panchayat, the Revenue Divisional Officer, Tanjore, sent up proposals for the exclusion of Orathiran Kudikadu from Telungan
Kudikadu Panchayat, and, for constituting it a separate panchayat, to the Joint Development Commissioner, who, as already stated, was
appointed as an Inspector under S. 2 (15) of the Act, for the purpose of S. 3 (2) of the Act. This proposal seems to have been approved by the
Government G. O. Ms. No. 2108 R. D. and L. A. dated 2nd October 1964. Thereafter the Inspector issued a notice to the Telungan Kudikadu
Panchayat to show cause against the proposed bifurcation as required by S. 3 (2) (d) of the Act. The Panchayat sent its objections to the
proposal. On a consideration of the objections and explanations of the Panchayat, the Inspector issued the impugned notification. It is to quash this
notification that this writ petition has been filed.
The notification is assailed on two grounds :
(1) that the reasons for the exclusion of Oranthiran Kudikadu from Telungan Kudikadu were not mentioned in the notice envisaged in S. 3 (2)
(d)and (2) that the prior approval of the proposal by the Government which is not vested with original jurisdiction in this behalf had vitiated all the
proceedings. We are not inclined to accede to either of these two propositions. To deal with the complaint of absence of reasons in the notice
issued to the Panchayat, it has to be mentioned that this point was not raised in the petition. Moreover, the Panchayat passed a resolution
requesting the Government in the year 1961 for the bifurcation of this Panchayat into two. This request was deferred to reasons which need not be
mentioned here, and, it is not the case of the petitioner that because of the said omission the Panchayat could not formulate its objections. We have
therefore no hesitation in negativing this sub-mission.
Coming next to the argument that the Government was not authorised under the Act to give its approval to the proposal for bifurcation, we feel
that it is inadmissible having regard to the relevant statutory provisions which will be extracted presently. It is true that Act XXXV of 1958 has
constituted the Inspector of Local Boards and Panchayats as the statutory authority to perform all or any of the functions indicated in S. 3etc. That
section, omitting the unnecessary portions, reads as follows :
S. 3 (1). The Inspector shall by notification : (a) classify and declare every local area comprising a revenue village or villages or any portion of a
revenue village or contiguous portions of two or more revenue villages and having a population estimated at not less than five thousand and an
annual income estimated at not less than ten thousand rupees as a Panchayat town for the purposes of this Act;
(b) classify and declare every other local area comprising a revenue village or villages or any portion of a revenue village or contiguous portions of
two or more revenue villages with a population estimated at not less than five hundred as a Panchayat village for the purposes of this Act; and
(c)...........
(2) (a). The Inspector may, by notification, exclude from a village or town any area, comprised therein, provided that the population of the village
or town, after such exclusion, is not less than five hundred;
(b) In regard to any area excluded under Cl. (a), the Inspector shall, by notification under Sub-S. (1) declare it to be a village or town if it has a
population of not less than five hundred or if its population is less than five hundred include it in any contiguous village or town under Cl. (c) (i).
(c) The Inspector may, by notification-
(i) include in a village or town any local area contiguous thereto; or
(ii) cancel or modify a notification issued under Sub-S. (1) or
(iii) alter the name of any village or town specified under Sub-S. (1).
(d) Before issuing a notification under Cl. (a) or under Cl. (b) read with Sub-S. (1) or under Cl. (c) the Inspector shall give the Panchayat or
Panchayats which will be affected by the issue of such notification a reasonable opportunity for showing cause against the proposal and shall
consider the explanations and objections, if any, of such Panchayat or Panchayats.
But, S. 157 (5) makes this exercise of the power by the Inspector subject to restrictions and conditions prescribed by the Rules and the control of
the Government. S. 157, in so far as it is of immediate relevancy, recites :
(5) The exercise of any power conferred on the Inspector or the Collector by any of the provisions of this Act including Sub-Ss.(2) to (4) of this
section shall, whether such power is exercised by the Inspector or the Collector himself or by any officer to whom it has been delegated under
Sub-S. (2) or (3), be subject to such restrictions and conditions as may be prescribed and also to control by the Government or by such officer as
may be empowered by them in this behalf. The Government shall also have power to control the acts or proceedings of any officer so empowered.
It is urged on behalf of the petitioner that this control of the Government is confined to administrative acts only and is not extended to quasi-judicial
functions to be performed by the Inspector under S. 3 and that, further, under that section Government can only prohibit the officers concerned
from doing a particular thing but not direct them to do anything positively.
We are not disposed to give weight to either of the two contentions. As mentioned supra, the controlling power is to be exercised over every
power that is conferred on the Inspector or the Collector and is not limited to any particular power. It covers each and every power of the officer
concerned to be exercised under the Act. There will therefore be no justification in reading a restriction into it. That being so, we need not decide
whether under S. 3of the Act, the Inspector performs quasi-judicial functions or not.
We feel that the word ""control"" occurring in this section is of wide import and it extends to positive acts and not restricted to negative acts, such
as prohibiting either the Inspector or the Collector from doing a thing as suggested by learned Counsel for the petitioner. In our opinion this
expression has both a negative and a positive content. It is used in a comprehensive sense and takes in positive acts such as issue of directions to
the Inspector or the Collector. One of the meanings of the expression ''control'' as given in Shroud''s Judicial Dictionary is : ""to give or refuse assent
to a certain proposed course."" According to that dictionary ""control"" is confined to the control of the proceedings in the issue so long as they are
actually going on, and does not extend to proceedings after judgment.
In the Shorter Oxford English Dictionary one of the meanings of the word ''control'' is : ""the fact of controlling, or of checking and directing
action, domination, command away"". It is thus seen that the issue of positive directions is not excluded from the concept of control.
None of the decisions cited by the learned Counsel for the petitioner is opposed to the view taken by AIR 1943 164 (Privy Council) does not
afford any analogy here. What was laid down by their Lordships of the Privy Council was that if the act done was a judicial act as distinct from a
ministerial act certiorari would lie and the power of superintendence which the High Courts had over the subordinate Courts under S. 107of the
Government of India Act, 1915, did not include a right to issue a writ of certiorari to individuals or official bodies exercising judicial functions in the
mofussil.
The decision in Mahadayal Premchandra v. Commercial Tax Officer A. I. R. 1956 S. C. 667 also does not come to the rescue of the petitioner.
There a Commercial Tax Officer, without exercising his own judgment in the matter of assessing a dealer, asked for instructions from the Assistant
Commissioner and made the assessment in accordance with the instructions of the Assistant Commissioner. This was struck down by the Supreme
Court on the ground that the assessing authority was merely voicing the opinion of the Assistant Commissioner without any conviction of his own
and that the assessee had no opportunity of meeting the point of view which had been adopted by the Assistant Commissioner. The instant case
does not fall within the doctrine of Mahadayal Premchandra v. Commercial Tax Officer A. I. R. 1956 S. C. 667.
Adityan v. First Income tax Officer, City Circle IV Madras (1984) 2 M.L.J. 113, belongs to a similar category of cases. Here the Income tax
Officer passed an order declining to grant exemption to a trust, following the instructions issued by the Central Board of Revenue. A Division
Bench of this Court, which dealt with this matter, opined that whatever might be the true position of the Central Board of Revenue ""as the topmost
administrative authority"", it could not tell the assessing authority, the Income tax Officer, what to do and what not to do in regard to a particular
assessment. We do not think that even the decision in State of Punjab v. Raghunath Das AIR 1863 P&H 76 advances the case of the petitioner.
The judgment in that case turned on the language of S. 8 of the Punjab Excise Act which said:
Subject to the control of the State Government and unless the State Government shall by notification otherwise direct, the general superintendence
and administration of all matters relating to excise shall vest in the Financial Commissioner.
It is on the terms of the section that a Division Bench of the Punjab High Court held that the Act did not provide for the penultimate intervention on
the part of the authority of the exercise of any discretion on the part of the State on the question of the desirability of issuing an instrument of
licence. In that case, the Collector accepted the highest bid of a person in the sale of a liquor licence and this was approved by the Excise and
Taxation Commissioner in the exercise of his powers of Financial Commissioner and the initial deposit was made by the successful bidder.
Subsequently the Government, without even cancelling the licence or disclosing the reasons and without giving notice to the successful bidder, re-
auctioned the liquor licence. Questioning the right of the Government to do so the successful bidder in the first sale filed a writ petition under Art.
226of the Constitution of India, and the Punjab High Court accepted that petition for the reasons mentioned above.
So this case also is not authority for the proposition advanced by the learned Counsel for the petitioner.
On the other hand, there are a number of rulings of this Court, though no doubt of single Judges, which have held that in the exercise of the
powers under S. 127(4) of Act X of 1950, direction could be issued by the Government. In Writ Petition Nos. 528 and 529 of 1958, after an
elaborate discussion of the matter, Ramachandra Iyer, J., as he then was, ruled that the controlling authority of the Government included the right to
give directions, to the Inspector of Local Boards not to bifurcate a particular Panchayat. The learned Judge expressed the opinion that it was
competent for the Government to issue such instructions so long as no final notification was issued under S. 3 effecting a bifurcation. In support of
his conclusion he referred to Dullfus Miag Et for Companies S. A. v. Bank of England (1950) 1 ch. 353 where it was stated that ""Control
covered a right to tell the possessor what is to be done with the property.
To similar effect is the judgment of Veeraswami, J., in W. P. Nos. 799 and 800 of 1960. The learned Judge upheld the order of the
Government instructing the Inspector of Local Boards to bifurcate a particular Panchayat into two. In his opinion, it was within the competence of
the Government to do so having regard to the terms of the S. 127which is the predecessor of the present S. 157of the Act. To a like effect is the
judgment of Jagadisan, J., in W. P. No. 1271 of 1960. Here again the learned Judge said that the Government is a paramount controlling and
supervising authority over all the statutory functions of the officers acting under the Act and is empowered to issue directions to the Inspector to
exclude a particular area from an existing Panchayat and forming it into a separate Panchayat. No doubt, these three decisions were rendered
under the Madras Village Panchayats Act X of 1950. But we will presently show that the situation prevailing under this Act is not in any way
different.
We will now refer to a judgment of one of us (Ramamurti, J.) in W. P. No. 107 of 1965, which interpreted S. 157 (5) of the Act. It was held
there that the control vested in the Government covered the right to issue directions for bifurcation or amalgamation of a Panchayat. There it is
observed :
Section 157(5) will apply to all cases and the Government will have an overriding power to control and impose any restriction or condition with
regard to the powers which have been conferred upon the Inspector under this Act.
We will now proceed to consider whether there is anything in the language of S. 157, which warrants the distinction that is sought to be made
by learned Counsel for the petitioner. For this purpose, we will read both S. 124 (4) of Act X of 1950 and S. 157 (5) of Act XXXV of 1958. We
find that S. 157 (5) is in pari materia with S. 127(4)and there is no difference in the language of both the sub-sections except that for the word
officer"" occurring in Sub-S. (5) of S.157 the word ""person"" is substituted in S. 127 (4). We do not think that this change was intended to convey
any diminution of the controlling authority of the Government.
The right of appeal given to a resident of a Panchayat under S. 3 of the Act does not detract from the right of the Government to exercise its
control in the manner indicated above. It should be borne in mind that under the old Act, the re-visional jurisdiction was conferred on Government
and this was not regarded as militating against the controlling authority of the Government under S. 127 (4).
Reference under Stamp Act (1), which interpreted S. 56 (1)of the Stamp Act, which is analogous to S. 157 (5) of the Act throws some light
on this enquiry. The question there was whether under S. 56 (1) the Board of Revenue could refer a case to the High Court for its opinion when
the Collector had issued a certificate that the instrument has been properly stamped. It was decided by a majority that the Board could interpose if
necessary, its control before the Collector made the certificate, but not after that certificate was issued by the Collector. S. 56 (1) of the Stamp
Act reads :
The powers exercisable by a Collector under Chapter IV and Chapter V and under Cl. (a) of the first proviso to S. 26 shall in all cases be subject
to the control of the Chief Controlling Revenue Authority.
There was a discussion in this decision as to when control could be exercised, or, as to when control would and the revision of the order could be
made. Bhashyam Aiyangar, J., who spoke for the majority of the Judges, stated there that the Board of Revenue could intervene before the
Collector could intervene in exercise of its controlling power under S. 54, but, not after issue of a certificate which would become the subject
matter of review if the Board of Revenue had re-visional jurisdiction. As per the principles enunciated in The Reference under Stamp Act 25 Mad
752 the control could be exercised before the proposal is actually sent to the Panchayat for its remarks and before the issue of notification.
It should be remembered that the right of appeal is given only after the notification issued by the Inspector. It does not attach itself to the
original proposal. It springs into existence only after the issue of final notification under S. 3 (2) (d) of the Act. We see no difficulty in reconciling
the right of appeal conferred upon a resident of a Panchayat and the controlling authority of the Government before the issue of notification. That
being the correct legal position, the approval of the proposal by the Government before the Panchayat was consulted under S. 3 (2) (d) has in no
way vitiated the proceedings resulting in the notification that is impeached before us. For these reasons, we repel the argument based on S. 3 of the
Act. In the result, the writ petitions are dismissed with costs, of the Government. Additional Government Pleader''s fee Rs. 100 in W. P. No. 2172
of 1964 and Rs. 50 in W. P. 2173 of 1964.