Chattisgarh High Court
Sandeep Shukla vs State Of Chhattisgarh And Others on 12 July, 2012
HIGH COURT OF CHATTISGARH BILASPUR
W P C No 1931 of 2011
Sandeep Shukla
...Petitioners
Versus
State of Chhattisgarh and others
...Respondents
! Shri Rajesh Pandey counsel for the petitioner
^ Shri Satish Gupta Govt Advocate for the respondents 1 & 2 Shri Sandeep Dubey & Shri Avinash K Mishra counsel for responden
CORAM: HONBLE SHRI PRASHANT KUMAR MISHRA J
Dated: 12/07/2012
: Judgement
ORDER
(12.07.2012) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
1. The petitioner being President of Janpad Panchayat, Kota, District Bilaspur has preferred this petition under Article 226 of the Constitution of India seeking quashment of the order dated 31.3.2011 (Annexure P-1) passed by the Additional Collector, Bilaspur and the notice dated 01.04.2011 (Annexure P-
5) issued by the said Additional Collector convening the meeting of the Janpad Panchayat, Kota to consider the motion of no-confidence brought by the members of the Janpad Panchayat against the petitioner.
2. The petitioner along-with respondents 4 to 26 were elected as members of the Janpad Panchayat, Kota, in the election held in the month of January 2010 and thereafter the petitioner was elected as President by the members of the Janpad Panchayat on 29.03.2011. Some of the private respondents submitted a motion of no-confidence to the Collector, who is the prescribed authority. The Collector, on the same date, made over the matter to the Additional Collector by observing that under the work distribution memo operative in the Collectorate, the Addl. Collector is authorized to take up the proceedings under the provisions of C.G. Panchayat Raj Adhiniyam 1993 with respect to Kota sub- division. The Additional Collector, thereafter appointed the Sub-Divisional Officer, Revenue, Kota, as the authorized officer and convened the meeting of the Janpad Panchayat on 09.04.2011. Even before the said meeting, this writ petition was preferred and by interim order dated 08.04.2011 it was directed that if the motion of no-confidence is passed against the petitioner in the meeting to be held on 09.04.2011, the result of the motion shall not be given effect to till the next date of hearing. The said interim order is still operative and thus the petitioner is still continuing in the office.
3. Learned counsel for the petitioner has argued that the Addl. Collector could not have acted as Prescribed Authority in view of the provisions contained in Section 28 of the Adhiniyam, therefore, the entire proceeding is vitiated and the petition deserves to be allowed on this short ground. He has relied upon a judgment rendered by this Court in the matter of Ayodhya v. State of C.G. 2006 (2) CGLJ 247.
4. On the other hand, learned counsel for the respondents have argued that the Addl. Collector was discharging the functions of Collector under the distribution memo prevalent in the District Collectorate, therefore, the present is not a case of inherent lack of jurisdiction in view of the provisions contained in Section 17 & 21 of the C.G. Land Revenue Code read with Section 17 of the C.G. General Clauses Act and the judgment relied by the petitioner in the matter of Ayodhya (supra) has no application in the facts of the present case.
5. Section 28(2) of the Adhiniyam 1993 reads thus:
"28. No confidence motion against President or Vice President- (1) xxx xxx xxx (2) Notwithstanding anything contained in this Act or the Rules made thereunder, a president or a vice-president shall not preside over a meeting in which a motion of non-confidence is discussed against him.
Such meeting shall be convened in such manner as may be prescribed and shall be presided over by an officer of the Government as the prescribed authority may appoint. The President or the Vice-
President, as the case may be, shall have a right to speak at or otherwise to take part in the proceeding of the meeting."
6. On a reading of the said provision, it appears that the Legislature has not mentioned the name of the officer who will perform the duties of a prescribed authority but the said power has been delegated on the State Government who may appoint any officer as the Prescribed Authority.
7. In exercise of powers conferred by Clause 21 of Section (2) read with sub-section (3) of Section 93 of the Adhiniyam, 1993 and in supersession of earlier Notification No.705/P/22/2003 dated 13.05.2003, the State Government has notified that the officer or the authority mentioned in Column No.2 of the Table shall discharge the functions of the prescribed authority for the purpose of sections of the Adhiniyam mentioned in corresponding entry in Column III thereof. The relevant entry for the purposes of this writ petition is the Entry (15). Under the said Entry, the Collector has been appointed as the prescribed authority for the purpose of section 28(2) of the Adhiniyam.
8. The point for consideration is whether in view of the language of section 28(2) of the Adhiniyam, the District Collector who has been appointed as prescribed authority by the State Government can further sub-delegate the said function of the prescribed authority to be performed by an Additional Collector who has not been appointed as prescribed authority in the notification issued by the State Government.
9. The maxim "delegatus non potest delegare" which means a delegated authority cannot be redelegated has been explained and the application thereof has been interpreted by Hon'ble the Supreme Court in the matter of Barium Chemicals Ltd and another v. Company Law Board and others AIR 1967 SC 295 thus in paragraph 36 :
"(36) But 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."
In the matter of Marathwada University v. Seshrao Balwant Rao Chawan (1989) 3 SCC 132, the following has been held in paragraph 20 of the Judgment:
"20. Counsel for the appellant argued that the express power of the Vice Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officers. We are unable to agree with this contention. Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal. Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove. This power is located under Section 24(1)(xxix) of the Act. It is, therefore, futile to contend that the Vice- Chancellor can exercise that power which is conferred on the Executive Council. It is a settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury's Laws of England (Vol.I, 4th end., Para 32) summarises these principles as follows:
32. Sub-delegation of powers.-In accordance with the maxim delegatus non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub-delegation of the power is authorized by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorizing sub-delegation ; and the same may be said of any power to the exercise of which the designated body should address its own mind."
Hon'ble the Supreme Court in the matter of Sahni Silk Mills (P) Ltd. and another v. Employees' State Insurance Corporation (1994) 5 SCC 346 while considering the sub-delegation made by the Corporation which itself was functioning as a delegate u/s 94-A of the Employees' State Insurance Act, 1948 held thus in paragraph 10 of the Judgment:
10. So far as the present Section 94-A is concerned, it says that the Corporation subject to any regulation made by the Corporation in that behalf, may direct that particular or any of the powers and functions which may be exercised or performed by the Corporation, may, in relation to such matters and subject to such conditions, if any, as may be specified "be also exercisable by any officer or authority subordinate to the Corporation". Section 94- A does not specifically provide that any officer or authority subordinate to the Corporation to whom the power has been delegated by the Corporation, may in his turn authorize any other officer to exercise or perform that power or function. But by the resolution dated 28.2.1976 the Corporation has not only delegated its power under Section 85-B(1) of the Act to the Director General, but has also empowered the Director General to authorize any other officer to exercise the said power. Unless it is held that Section 94-A of the Act, enables the Corporation to delegate any of its powers and functions to any officer or authority subordinate to the Corporation, and he in his turn can sub-delegate the exercise of the said power to any other officer, the last part of the resolution dated 28.2.1976 cannot be held to be within the framework of Section 94-A. According to us, Parliament while introducing Section 94- A in the Act, only conceived direct delegation by the Corporation to different officers or authorities, subordinate to the Corporation, and there is no scope for such delegate to sub-delegate that power, by authorizing any officer to exercise or perform the power so delegated."
Once again Hon'ble the Supreme Court in the matter of State of M.P. v. Bhupendra Singh (2000) 1 SCC 555 considered the validity of sanction to prosecute granted by the Additional District Magistrate under the Explosives Substances Act 1908 only to hold that when the power has been conferred upon the District Magistrate, the Additional District Magistrate cannot exercise the power despite there being a notification issued by the State Government to the effect that the Addl. District Magistrate shall exercise powers of District Magistrate conferred under the Cr.P.C. The following has been held in Paras 4, 5 and 6 of the Judgment:
"4. The consent for prosecution of the respondent was granted by the Additional District Magistrate of the district concerned and, in this behalf, reliance was placed, on behalf of the appellant, upon a notification dated 24.4.1995 issued by the appellant whereunder it appointed the Joint Collector and Executive Magistrate as Additional District Magistrate for the district of Gwalior and directed that he should "exercise powers of District Magistrate conferred under the said Code (Criminal Procedure Code) or under any other law for the time being in force". The submission on behalf of the appellant is that, by reason of the latter notification, the power under Section 7 of the said Act delegated by the Central Government to the District Magistrate had now been delegated to the Additional District Magistrate and that, accordingly, the consent that he granted for the prosecution of the respondent was valid.
5. It is difficult to accept the submission. The power of granting consent under Section 7 of the said Act rests with the Central Government. The Central Government has delegated it to the District Magistrate. It is, in our view, not competent for the State Government to further delegate to the Additional District Magistrate a power of the Central Government which the Central Government has delegated to the District Magistrate.
6. The decision of this Court in Hari Chand Aggarwal v. Batala Engg. Co.Ltd. is also of some relevance. This Court said that where, by virtue of a notification under Section 20 of the Defence of India Act, the Central Government had delegated its powers under Section 29 to a District Magistrate, an Additional District Magistrate was not competent to requisition property under Section 29, simply because, he had been invested with all the powers of a District Magistrate under Section 10(2)."
10. Dealing with the same provision and notification, this Court in the matter of Ayodhya (supra) has held thus in paragraphs 6, 7 & 8 thereof.
"6. The relevant entry for our purpose is the Entry (15). The language employed in the above notification issued by the Govt. of Chhattisgarh is plain, clear, precise and unambiguous and does not have more than one meaning as to who should be the Prescribed Authority for the purpose of exercising various powers under various Sections of the Adhiniyam. The power under sub-Section (2) of section 28, as per the table appended to the said notification, could be exercised only by the Collector. However, it is the contention of the learned Government Advocate that in Section 16 of the Chhattisgarh Land Revenue Code, 1959, the word `Collector' is defined, and as per that definition the word `Collector' includes Additional Collector and therefore, the 3rd respondent's authority to convene the meeting to consider the `no confidence motion' could not be questioned. In support of his submission, learned Government Advocate sought to place reliance on a judgment of a learned Single Judge of Madhya Pradesh High Court in the case of Kaushal Prasad Kashyap Vs. State of M.P. and others.
7. Having heard learned counsel for the parties, I find substance in the contention of the learned counsel for the petitioner and no merits in the submission of he learned Government Advocate. The Adhiniyam does not define the word `Collector'. Therefore, in normal course and in the absence of Notification No.705/P/22/2003 dated 13th May, 2003, I could have followed the definition of the word `Collector' as defined under Section 16 of the Land Revenue Code. But, such a course is impermissible because of the Notification dated 13-05-2003 issued by the Government of Chhattisgarh in exercise of power conferred on it by clause (xxi) of Section 2 read with sub-section (3) of Section 93 of the Adhiniyam referred to above.
8. It is well settled that while interpreting, a provision of law, whether it is statutory provision or of a delegate legislation, the Court should interpret such provision in such a way as to give content and meaning to each and every word used therein, and it cannot be interpreted in a way as to render any word or expression as otiose, redundant or surplussage. A careful perusal of the Table appended to Government order dated 13th May 2003 would clearly show that the rule-making authority (the Government) wherever it wanted to confer powers under various Sections concurrently on Collector as well as Additional Collector, it has done so, whereas, if it wanted to confer certain powers exclusively on Collector and other named officers of the state, it has directed accordingly. For example, the power to be exercised under Sections 23(1), 28(2), 31, 33 `A' and certain other Sections has been conferred exclusively on Collector, whereas the power to be exercised under Section 25(2), 33, 32(1) amongst several other Sections has been conferred concurrently on Collector as well as Additional Collector. This has been consciously and deliberately done by the Government. If the Government wanted the word `Collector' to mean Additional Collector also, there was absolutely no necessity to mention the word `Additional Collector' in Entries 12, 17, 18, 20, 24(2), 25(2), 26(2), 27, 28(2), 29(1), 32(2), 33(1), and (2), 34(2), 36(2), 37(1), 39(2), 41(1) and 44(2), because, in that case `Collector' would also mean `Additional Collector'. Therefore, the power under Section 28(2) ought to have been exercised only by the Collector and not by the Additional Collector."
11. In view of what has been held by Hon'ble the Supreme Court in the above referred judgments and by this Court in Para 7 of the judgment in the matter of Ayodhya (supra), the argument raised by learned counsel for the respondents that since in the present case, the no-confidence motion was initially placed before the Collector who made it over to the Additional Collector under the work distribution memo, hence there is no illegality has no substance, because, in view of the notification issued by the State Government appointing the Collector as the prescribed authority, the work distribution memo, cannot be acted upon which may be used where the Addl. Collector also is described as prescribed authority along-with the Collector as has been found by this Court in Para 8 in the matter of Ayodhya (supra). Even otherwise a statutory notification cannot be superseded by taking shelter of the work distribution memo. The present is a case of lack of jurisdiction on the authority of Additional Collector to convene the meeting of the Janpad Panchayat to consider the no- confidence motion, therefore, the convening of meeting is itself without jurisdiction and even if the motion is carried subsequently the plea that in absence of any prejudice shown to have been caused to the petitioner, the result of the motion is not vitiated, cannot be sustained. When the authority lacks jurisdiction and the motion was not considered in accordance with the express provisions of law, the said plea of prejudice has no application. Consequently, it is held that the Additional Collector could not have discharged the function of Prescribed Authority u/s 28(2) of the Adhiniyam and the entire proceeding for convening the meeting for considering no-confidence motion is vitiated.
12. In view of the above discussion the writ petition succeeds and is allowed. The proceedings drawn vide Annexure P-1 and the notice for holding meeting of Janpad Panchayat issued by the Additional Collector vide Annexure P-5 as well as subsequent/ consequent meeting of the Janpad Panchayat is quashed. There shall be no order as to costs.
JUDGE