Madhya Pradesh High Court
Kaushal Prasad Kashyap vs State Of M.P. And Ors. on 28 October, 1998
Equivalent citations: 1999(1)MPLJ455, 1999 A I H C 3698, (1999) 1 MPLJ 455
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
ORDER D.M. Dharmadhikari, J.
1. The petitioner has been suspended from the office of Sarpanch of Gram Panchayat, Salkhan in Tahsil Janjgir, district Bilaspur under Section 39(1) of the M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as the 'the Act'), by impugned order dated 6-2-1998 (Annexure. P. 1).
2. The order of suspension requires confirmation by the State Government under Section 39(2) of the Act and the said suspension has been confirmed by order passed by the Additional Collector dated 18-5-1998 (Annexure. P.2). The main ground urged in assailing the order of suspension by the learned counsel Shri Prashant Singh for the petitioner is that in accordance with Section 39(2) of the Act the power of confirmation has not been exercised by the State Government. The State Government in exercise of powers of delegation under Section 93 of the Act has delegated the said power of confirmation to the Collector by notification published in M.P. Raj Patra dt. 2-2-1998. The contention advanced on behalf of the petitioner is that the power of State Government delegated to the Collector could not be validly exercised by the Additional Collector and, therefore, the suspension in the absence of valid confirmation has lost its legal efficacy. Learned counsel for the petitioner argued that the delegatee of a statutory power cannot further delegate the same and it is against the settled principle of administrative law. The Maxim "Delegatus non protest delegare" has also been pressed into service and reliance has been placed on the decisions in Barium Chemicals Ltd. v. Company Law Board, AIR 1967 S.C 295, State of Rajasthan v. Hariram, AIR 1976 S.C. 277, State of U.P. v. Dharmendra Prasad Singh, AIR 1989 S.C. 997, A.K. Roy v. State of Punjab, 1986 4 S.C.C. 326, State of Rajasthan v. Shri Hariram Nathwani, (1975) 2 S.C.C. 517, Marathwada University v. Shesrao Balwant Rao Chavan, (1987) Supp. S.C.C. 748, Matiullah S.K. v. State of West Bengal, AIR 1965 S.C. 132, Bombay Municipal Corporation v. Dhondu, AIR 1965 S.C. 1486, Gwalior Dist. Co-operative Central Bank v. Rameshchandra Mangal, 1984 Supp. S.C.C 528, and Sohanis Silk Mills v. Employees State Insurance, J.T. 1994 (5) S.C. 11 and the decision of this Court in W.P. No. 4498/96, Dr. P. G. Najpande v. J.N.K.V.V. decided on 13-5-1998.
3. On behalf of the respondents Shri R. S. Jha, Dy. A.G. for the State and Shri Rajeev Shrivastava, learned counsel appearing for the respondent No. 5 submit that the delegated power of Collector could be exercised by the Additional Collector as the Collector under the 'work distribution memo' had assigned the power to Additional Collector. Thus Additional Collector is empowered to exercise the power of confirmation of suspension. Recourse is taken to the provisions contained in Section 15 of the M.P.L.R. Code read with Section 17 of the M.P. General Clauses Act. Reliance by the respondents is placed on the decisions in the cases of Shantilal Jain v. M.L. Patil, 1988 M.P.L.J. 172 and Mirza Rashid Beg v. Inayatulla, 1986 M.P.L.J. 134 as also an unreported decision of this Court W.P. 4040/95, Pradeep Kumar Gandhi v. Vinod Kumar Goswami and Ors. decided on 10-3-1997.
4. The State Government has undisputedly delegated the power of confirmation by notification under Section 93 to the 'Collector'. The delegation is to the holder of the office of Collector. The word 'collector' has not been defined by the provisions of the Act. The Collector is an holder of an office under the M.P.L.R. Code and, therefore, recourse can be taken to the provisions of the Code. Section 16 of the M.P.L.R. Code contains powers to appoint Collector and reads as under :
"16. Power to appoint Collector. - The State shall appoint in each district a Collector shall exercise therein the powers and discharge the duties conferred and imposed on a Collector by or under this Code or any other enactment for the time being in force."
Section 17 of the Code provides appointment of 'Additional Collectors' and sub-section (2) thereof provides that 'Additional Collector' shall exercise such powers and discharge such duties conferred and imposed on a 'Collector' by or under this Code by or under any other enactment for the time being in force. Sub-section (3) is also relevant which says that while so exercising powers under the Code or any other enactment the 'Additional Collector' shall be deemed to be 'Collector'. Section 17 is reproduced as under :-
"17. Power to appoint Additional Collectors. - (1) The State Government may appoint one or more additional collectors in a district.
(2) An Additional Collector shall exercise such powers and discharge such duties conferred and imposed on a Collector by or under this Code or by or under any other enactment for the time being in force in such cases or class of cases as the State Government may, by a general order, notify or as the Collector of the district may, subject to any general or special restrictions imposed by the State Government, by an order in writing direct.
(3) This Code and every other enactment for the time being in force and any rule made under this code or any such other enactment shall, except where expressly directed otherwise, apply to the Additional Collector, when exercising any powers or discharging any duties under sub-section (2), as if he were the Collector of the district." (Italics for supplying emphasis)
5. In the M.P. General Clauses Act, 1957 the word 'Collector' has been defined to mean, 'Officer-in-charge of the revenue administration of a district'. Section 17 of the General Clauses Act is also relevant and reads as under :-
"17. Substitution of functionaries. - In any enactment it shall be sufficient, for the purpose of indicating the application of the law to every person or number of persons for the time being executing the functions of an office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed."
6. In the notification of delegation the State Government has delegated the power to the 'Collector' and the word 'Collector' has to be understood from the provisions of the Code. In relation to provision of the Code and also in relation of any other enactment 'Collector' would include 'Additional Collector' as provided in Section 17(2), (3) of the Code. It cannot, therefore, be said that under the notification of delegation the Collector has made any further delegation in favour of Additional Collector. Under the notification of delegation itself, the word 'Collector' would include 'Additional Collector'; in accordance with the work distribution memo, issued under Section 17 of the Code. This Court in the unreported decision (supra) has taken a similar view, while deciding the competence of 'Additional Commissioner' to exercise powers of 'Commissioner' in deciding an election petition. The two decisions cited on behalf of the respondents fully support them where provisions of the Code and of M.P. General Clauses Act were resorted to for rejecting a similar contention. The decisions cited on behalf of the petitioner are distinguishable. In the instant case there is no case of a delegatee further delegating his powers. The maxim relied is mainly attracted to subordinate legislation and not to exercise of statutory or administrative powers.
7. For the aforesaid reasons, the petition fails and is hereby dismissed.