The Municipal Committee vs Amar Nath Karkara

A.N. Grover, J.—This is an appeal under Clause 10 of the Letters Patent against an order of a learned Single Judge allowing a petition of the Respondent and quashing the resolution of the Appellant-committee with regard to the retrenchment of the post of the Octroi Superintendent of the Rampura Phul Municipality of which the Respondent was the incumbent.

It was not disputed before the learned Judge that the Respondent was holding the aforesaid post in a substantive capacity. The Municipal Committee retrenched the services of 20 employees including those of the Respondent after giving one month''s notice.

Certain rules, which are incorporated in the Punjab Municipal Account Code, had been framed u/s 240 of the Punjab Municipal Act, 1911, Rule V. 4 is in the following terms:

(1) The committee shall appoint an officer to be Octroi Superintendent who, in addition to discharging any other duties imposed upon him by these rules, shall be responsible generally for the assessment and collection of octroi in accordance with these rules and for the proper discharge of their duties by other inspecting, collecting or assessing officers, including the Assistant Octroi Superintendent, if any, appointed under the provisions of Rule V. 5 or under Sub-rule (2) of this rule.

(2) In municipalities where octroi (without refunds) is in force the Committee may appoint one or more Assistant Octroi Superintendents or Octroi Inspectors and may with the previous sanction in writing of the Deputy Commissioner determine by resolution which functions and duties imposed by these rules upon the Octroi Superintendent may be discharged by such Assistant Octroi Superintendents or Octroi Inspectors.

The learned Single Judge was of the view that according to Sub-rule (1) of the above rule, the Committee was bound to appoint an Octroi Superintendent and since the Respondent was the incumbent of that post, the Committee could not retrench that post so as to have the effect of terminating the services of the Respondent. It was contended before him on behalf of the Committee that under Sub-rule (2) of the same rule the Assistant Octroi Superintendent had been invested with the powers of the Octroi Superintendent and, therefore, there had been due compliance contained in the rule but the learned Judge was of the opinion that that furnished no answer to the argument raised on behalf of the Respondent that the post could not be abolished or retrenched because under Sub-rule (1) the Committee was bound to have an Octroi Superintendent.

Mr. H.S. Wasu, who appears for the Appellant committee, has sought to rely On Sub-rule (2) and has contended that in Municipalities where octroi (without refunds) is in force the committee is entitled to appoint one or more Assistant Octroi Superintendents and can with the previous sanction in writing of the Deputy Commissioner determine by resolution which functions and duties imposed by the rules upon the Octroi Superintendent may be discharged by such Assistant Octroi Superintendents.

According to Mr. Wasu, in cases of such Municipalities where octroi (without refunds) is in force, it is not obligatory to appoint an Octroi Superintendent as provided by Sub-rule (1). It is difficult to accede to this contention because the language of Sub-rule (1) makes no distinction whatsoever between Committees where octroi (without refunds) is in force and any other class of Committees and it provides in mandatory terms that an officer has to be appointed as an Octroi Superintendent who has to discharge the duties imposed upon him by the rules and has to be responsible generally for the assessment and collection of Octroi. He has further to exercise supervisory powers over junior officers like Assistant Octroi Superintendents appointed under the provisions of Rule V. 5 or Sub-rule (2) of Rule V. 4. All that Sub-rule (2) contemplates is that in Municipalities where octroi (without refunds) is in force, an Assistant Octroi Superintendent or more than one such officer can be appointed) and he can be assigned certain functions and duties which the Octroi Superintendent alone is empowered to discharge under the rules. As observed before there is no indication in Sub-rule (2) that in Such Municipalities an Octroi Superintendent need not be appointed at all. At any rate, the question in the present case is of a different nature. The Respondent had been appointed to a post which is provided by Sub-rule (1). So long as his appointment was not terminated in accordance with the statutory provisions or the rules, that result could not be achieved by retrenching the post because Sub-rule (1) compulsorily provides for the existence of that post Even if ordinarily under Sub-rule (2) the Appellant-committee could, appoint an Assistant Octroi Superintendent and confer upon him the functions and duties imposed upon the Octroi Superintendent, that power was not initially exercised and it was under Sub-rule (1) that an Octroi Superintendent was appointed. Once an appointment had been made under that provision, the post could not be abolished in the absence of any specific provision in the rules or the statute so as to deprive its present incumbent from holding that post The view, therefore, which has been taken by the learned Single Judge is unexceptionable and this appeal must fail which is dismissed with costs a suit u/s 50 by a tenant, who has been dispossessed, to get back possession. Obviously, therefore, Section 77 or Section 50 of the Punjab Tenancy Act are not applicable.

The next contention of the learned Counsel for the Petitioner was that under Sub-section (2) of Section 23 of the Consolidation Act if all the owners and tenants do not agree to enter into possession as provided in Sub-section (1); they would be entitled to possession of the holdings and tenancies allotted to them from the commencement of the agricultural year next following the date of the publication of the scheme; and the Consolidation Officer shall; if necessary, put them in physical possession of the holding to which they are so entitled

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He urged that in view of this, work of putting the tenants in physical possession of the holdings to which they are entitled is left only to the consolidation authorities. That would certainly be a case where there is no dispute as to the right of a tenant to get possession. Here, as already indicated, the Petitioner denies the right of the tenants to get possession of any portion of the land which has been given to him under the orders of the Additional Director. He has further stated that the application of the Plaintiffs, given to the consolidation department, has been rejected. As evidence has not been led on merits, it is not possible to say on what grounds that application has been dismissed. If and when evidence is produced before the trial Court, it will be open to it to go into the same and adjudicate on the question as to whether the tenants are or are not entitled to get possession of the land claimed by them. Section 25 of the Consolidation Act clearly provides that the rights of the tenants and the landowners are in no way altered as a result of consolidation and they remain the same as they were before consolidation. The suit consequently raises the question of title as to whether the Plaintiffs are entitled to get possession of any area of land and, if so, how much. This is a matter which can be tried only by a Civil Court, there being no provision either in the Land Revenue Act, Punjab Tenancy Act or Section 44 of the Consolidation Act prohibiting the jurisdiction of the Civil Court in this matter. The decision of the Court below, though slightly on a different ground, must be upheld.

In the result this petition is dismissed. There will, however, be no order as to costs. The parties have been directed to appear in the trial Court on 15th of March, 1965 to get further date. The records will be despatched to the Court below immediately.