Karnataka High Court
State Of Karnataka vs Ningappa Ramachandra Gurav on 30 March, 1988
Equivalent citations: ILR1988KAR1380, 1988(1)KARLJ466
JUDGMENT Prem Chand Jain, C.J.
1. This Judgment of ours would dispose of Writ Appeal Nos. 1942, 1943, 2184, 2250, 2251, 2253, 2309 & 2565/1987, as a common question of law and fact arises in all these cases.
2. The principal question of law that needs decision in these cases is whether an Adhyaksha having been properly authorised through a resolution by the Zilla Parishad, can validly nominate two persons from the Backward Classes under Section 5(3) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the Act).
3. So far as the facts are concerned, there is no dispute. What the Zilla Parishads have done in all these cases is that they have authorised their respective Adhyaksha (President) by resolution properly passed to nominate two persons from the Backward Classes and in pursuance to that resolution, the Adhyaksha has made such nominations. Through all these petitions, the nominations made by the Adhyaksha have been challenged on the ground that the power of nomination could not be delegated by the Zilla Parishad to the Adhyaksha, that even the Zilla Parishad cannot authorise the Adhyaksha to make nomination of the members from the Backward Classes and that it is the Zilla Parishad which is to make nominations under the Act. On the other hand, the plea put forth on behalf of the State is that an administrative power vested in a body of persons can for effective exercise of such power be exercised by one or some of them acting on behalf of all, that such exercise of power does not result in self-abnegation or delegation of power, that under the scheme of the Act, it is not necessary that nomination should be made by the entire Zilla Parishad and that an authorisation by the Zilla Parishad does not amount to delegation of power as understood under the Act and having been validly made in favour of the Adhyaksha by the Zilla Parishad, the nominations made by the Adhyaksha are valid.
3. The learned single Judge in his well-considered Judgment has come to the following conclusions :-
(1) Section 5(3) of the Act confers power on the Zilla Parishad to nominate two persons belonging to Backward Classes and that power has to be regulated either by the provisions of that sub-section or by the rules and regulations expressly made in regard to the exercise of such power. Therefore, in the absence of any rules and regulations. Section 5(3) must be given full effect and, if so construed, an authorisation to the President to nominate two persons or delegation of power to him to do so would not render the nominations valid;
(2) On the contention that the Zilla Parishad can form a one-man committee under Section 5(3) of the Act and accordingly, the impugned resolution authorised the president to act as one-man committee, it is observed that constitution of one-man committee again depends on the intendment, object and the scheme of the Act. But, the Act with which we are concerned, does not provide for one-man committee to function at the Zilla Parishad level. Because, that may amount to negation of the very principle of decentralisation of powers which is the prime and laudable object of the Act.
(3) There is no ambiguity in the words of Section 5(3) and it is not the case of the respondents that by permitting all the members of the Zilla Parishad to make the nominations by the rule of simple majority, Section 5(3) becomes unworkable. The strength of Zilla Parishad varies from district to district. By convening a proper meeting, it will be possible for all the members to participate in the meeting. The meeting will have to be preceded by an Agenda. The Agenda has to disclose the subject-matter of the meeting. That will give an opportunity to all the members to make up their minds regarding the choice of nominations. That is the way to promote the development of democratic institutions and to secure a greater measure of participation by the people as emphasized in the preamble to the Act; and (4) On the plea that there was ratification of the nominations made by Adhyaksha which validates such nominations, it is held that there cannot be a ratification of an ultra vires act. This position admits of no doubt and it has been settled by the decision of the highest Courts in the United Kingdom.
5. On the basis of the aforesaid vital findings, the learned single Judge has concluded that the Adhyaksha had no jurisdiction to make nomination, as a result of which, the nominations were ordered to be set aside. The other questions on merits were not gone into. As earlier Observed, the State has filed the present appeals against the Judgment of the learned single Judge.
6. Before us, Mr. Somayyaji, learned State Counsel, challenged the correctness of the view taken by the learned single Judge and contended that the power of nominating two persons under Section 5(3) of the Act is administrative in nature, that such administrative power if conferred on a body of persons and is exercised by one or some of them on behalf of all, would not a mount to delegation of such power, that at best it may be a case of authorisation and that the Adhyaksha having been validly authorised by the body to exercise its power, the nomination made by the Adhyaksha is valid. In support of his contention, the learned State Counsel placed reliance on the Judgment of the Supreme Court in STATE OF UP. v. BATUK DEO PATI TRIPATHI, Mr. Vasudeva Reddy, learned Counsel, adopted the contention of Mr.Somayyaji and in addition submitted that the Adhyaksha is the Executive Head, that when a power is conferred on a body the exercise of such power can be regulated by that body if no provision for its exercise in a particular manner exists and that there being no specific bar in the Act and the Rules and Regulations made thereunder the Zilla Parishad had power to regulate the procedure for the exercise of power under Section 5(3). The learned Counsel also sought to argue that under Section 179 other committees (including One Man Committee) could be appointed by the Zilla Parishad and that authorisation in favour of the Adhyaksha could be treated as appointment of One Man Committee by the Zilla Parishad for nominating two persons under Section 5(3) of the Act.
7. On the other hand, Mr. Subbaiah, learned Counsel for the contesting respondents, reiterated the stand of his clients which was taken before the learned single Judge. Mr. Veerabhadrappa, learned Counsel, adopting the arguments of Mr. Subbaiah, further buttressed his arguments by contending that Section 168 specifies the powers of Adhyaksha, that the Adhyaksha in his individual capacity could exercise those powers, that the functions of the Zilla Parishad are provided in Section 182 and it is only those functions which could be assigned to the committees, and that the power of nomination in no circumstances could be conferred by the Zilla Parishad on the Adhyaksha.
8. Before adverting to the merits of the controversy, it would be appropriate to make a reference to the relevant provisions of the Act.
9. The Zilla Parishad Act was enacted with a view to provide for the establishment in rural areas, of Zilla Pari-shads. Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats, to assign to them local Government and judicial functions and to entrust the execution of certain works and development schemes of the State Five Year Plans to the Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and to provide for the decentralisation of powers and functions under certain enactments to those local bodies for the purpose of promoting the development of democratic institutions and securing a greater measure of participation by the people in the said plans and in local and Governmental affairs and for purposes connected with and incidental thereto.
10. Section 2(39) of the Act defines 'Zilla Parishad' as constituted under the Act. Section 5 deals with the constitution of Mandal Panchayats which shall consist of such number of elected members as may be notified from time to time by the Government at the rate of one member for every four hundred population or part thereof of the Mandal as ascertained at the last preceding Census of which the relevant figures are published. Section 5(2) provides that such number of seats which shall as nearly as may be 25% of the total number of the members of the Mandal Panchayat shall be reserved for women in every Mandal Panchayat ; provided that out of the seats so reserved one seat shall be reserved fora woman belonging to the Scheduled Castes or the Scheduled Tribes. Section 5(3) of the Act reads as under
"Where no person belonging to Backward Classes is selected to a Mandal Panchayat, the Zilla Parishad shall nominate two persons belonging to the said classes to the Mandal Panchayat."
11. The scheme of Section 5 of the Act provides that the Mandal Panchayat should consist of elected members on the basis of certain ratio to the population in the particular Mandal Panchayat constituency. There is also a provision for reservation for women belonging to Scheduled Castes and Scheduled Tribes. Sub-section (3) of Section 5 makes a provision for nomination of two persons belonging to the backward classes by the Zilla Parishad in the event where no person belonging to the backward classes is elected to a Mandal Panchayat. This provision is a departure from the earlier provision as it provides for nomination of two persons belonging to the Backward Classes by the Zilla Parishad. The other relevant provisions of the Act to which reference was made may also be noticed.
12. Section 138 of the Act provides that there shall be a Zilla Parishad for every district having jurisdiction over the entire district excluding such portions of the district as are included in a Municipality. Section 138(2) provides that the Zilla Parishad is a body corporate and shall have perpetual succession and common seal and subject to such restrictions as are imposed by or under this or any other enactment. Section 139 deals with the composition of Zilla Parishad. Section 140 provides as to who are the elected members of the Zilla Parishad. Section 168 provides that Adhyaksha shall be the executive head of the Zilla Parishad and shall perform all the duties imposed and exercise all the powers conferred on him under this Act and the Rules made thereunder. Section 177 makes a provision for Constitution of Standing Committees viz.
(a) General Standing Committee ;
(b) Finance and Audit Committee ;
(c) Planning and Development Committee ;
(d) Public Works and Amenities Committee ;
(e) Social Justice Committee ;
(f) Education Committee :
(g) Agriculture and Animal Husbandry Committee ;
(h) Health Committee ; and
(i) Industries Committee.
Sub-section (2) of Section 177 provides that each Standing Committee shall consist of such number of members not exceeding six including the Chairman as specified by the Zilla Parishad elected by the members of Zilla Parishad from among themselves in accordance with the system of proportional representation by means of single transferable vote. Section 178 deals with the functions of the Standing Committee. Section 179 of the Act is a residuary provision which empowers the Zilla Parishad to appoint committees for any purpose other than those specified in Section 178 of the Act. Section 268 of the Act deals with the delegation of powers, under which the Zilla Parishad may, by notification, delegate to the Secretary or the other Officer any of the powers conferred by or under this Act on Zilla Parishad. Under Section 269 the powers of the Zilla Parishad in respect of Mandal Panchayats are enumerated. Section 285 of the Act provides that the Zilla Parishad has power to make regulations with the previous sanction of the Government to carry out the purpose of this Act in so far as it relates to its powers and duties.
13. We have given our thoughtful consideration to the entire matter. Though at the first blush the arguments advanced by Mr. Somayyaji appeared to be attractive and convincing ; yet a little deeper scrutiny has shown that the same are untenable. As we see at the whole matter in the light of the scheme of the Act and the intendment of the Legislature in enacting this legislation, delegation or authorisation of power of the Zilla Parishad under Section 5(3) to Adhyaksha is neither envisaged nor permissible.
14. Under the scheme of the Act, the Government has power to make rules to carry out the purpose of the Act. Under Section 285, Zilla Parishad has the power subject to the provisions of the Act and the rules made under Section 284, and with the previous sanction of the Government, to make regulations to carry out the purpose of the Act in so far as it relates to its powers and duties. Thus the scheme of the Act postulates framing of necessary rules under Section 284 by the Government and necessary regulation sunder Section 285 by the Zilla Parishad to carry out the purpose of the Act in so far as it relates to its powers and duties. But no rules or regulations have been framed by the Government or the Zilla Parishad regulating the exercise of power under Section 5(3) of the Act. Therefore, in the absence of any rules and regulations, the provisions of Section 5(3) have to be interpreted on its plain terms by adopting literal approach, and if a conclusion arrived at on such interpretation finds support from the purposive approach, then, as observed by the learned single Judge such conclusion would rest on an infallible premise. What do we mean by purposive approach which is also known as schematic and teleological method of interpreation, a passage from a book by Lord Denning - The Discipline of Law - may be quoted with advantage :-
"We had a valuable paper on it by the President of the Court (Judge H. Kutscher) which is well worth studying : "Methods of interpretation as seen by a Judge at the Court of Justice, Luxembourg 1976." They adopt a method which they call in English by strange words at any rate they were strange to me - the "schematic and teleological" method of interpretation. It is not really so alarming as it sounds. All it means is that the Judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design or purpose which lies behind it. When they come upon a situation which is to their minds within the spirit - but not the letter -of the legislation, they solve the problem by looking at the design and purpose of the legislature at the effect which it was sought to achieve. They then interpret the legislation so as to produce the desired effect. This means that they fill in gaps, quite unashamedly, without hesitation. They ask simply: what is the sensible way of dealing with this situation so as to give effect to the presumed purpose of the legislation? they lay down the law accordingly."
15. Therefore, it is necessary to consider whether the Legislature intended under Section 5(3) of the Act that the Adhyaksha of the Zilla Parishad should be permitted to decide and nominate two members from the Backward Classes to fill the vacancies caused by the absence of elected candidates from the said class. In other words, would the Legislature have intended the non-participation of all the members of the Zilla Parishad who had been duly elected.
16. Under the statute, the mode of election to the Zilla Parishad is provided. The Zilla Parishads, as they are constituted, are not controlled by any one political party. Its members are elected on the basis of party programmes and party symbols. Some of them belong to the Ruling Party in the State while some belong to the Opposition Party and some belong to minority communities who do not belong to any of the political parties in the State. That being so, there is an element of participation by the members who belong to different political groups or communities for making a choice of two candidates from the Backward Classes. The choice of two members in a given case may upset the voting power of the Mandal Panchayats as all the decisions of the Mandal Panchayats are taken by the simple rule of majority of votes in its various meetings. In case the Party in Power in the State has just a bare majority, then, in the event of authorisation of Adhyaksha, the voting strength of that Party can be increased.
17. Further, if such power is conceded in Adhyaksha, then it has to be left to his decision with regard to the nomination of members. There is nothing provided in the Act as to, in the event of a patently illegal nomination made, what remedy would be available to the aggrieved person or to the electors in the Zilla Parishad. Again, there is nothing in the Act that once an authorisation is made, the same can be withdrawn. As is evident, the Act has entrusted the function of nomination to the Zilla Parishad. This involves exercise of a discretion by the Zilla Parishad which consists of large number of members. They are required to apply their mind as it is presumed that each member of the Zilla Parishad should exercise his individual Judgment on this matter and all the members of the Zilla Parishad should act and arrive at a decision. The Zilla Parishad is required to act as a whole. In BARIUM CHEMICALS LTD. v. COMPANY LAW BOARD, Bachawat. J. has observed :-
"As a general rule, whatever a person has power to do himself, he may do by means of an agent. This broad rule is limited by the operation of the principle that a delegated authority cannot be redelegated delegatus non potest delegere. The naming of a delegate to do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him, and there is a presumption that he is required to do the act himself and cannot re-delegate his authority. As a general rule, "if the statute directs that certain acts shall be done in a specified manner or by certain persons, their performance in any other manner than that specified or by any other person than one of those named is impliedly prohibited." See Crawford on Statutory Construction, 1940 Edn., Article 195 page 335. Normally, a discretion entrusted by Parliament to an administrative organ must be exercised by that organ itself. If a statute entrusts an administrative function involving the exercise of a discretion to a Board consisting of two or more persons it is to be presumed that each member of the Board should exercise his individual Judgment on the matter and all the members of the Board should act together and arrive at a joint decision prime fecie, the board must act as a whole and cannot delegate its function to one of its members.
... ... ...
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."
The aforesaid observations clearly go to show that when an administrative function involving the exercise of a discretion is conferred by a statute on any authority, then such discretion is intended to be exercised by that authority and by no other. Under the present Act, there is no provision from which authorisation of the power of Zilla Parishad on Adhyaksha can be inferred. The provisions have already been indicated which provide for delegation of power and function of the Zilla Parishad to the committees. If the Legislature had intended that this power of nomination could also be exercised by the Adhyaksha in the event of Zilla Parishad making an authorisation, then a provision in that respect would have been made. The Act specifically provides exercise of power of nomination by the Zilla Parishad. This statutory function which is vested in the Zilla Parishad cannot include the exercise of such function by a functionary authorised by Zilla Parishad in this respect. Reference may also be made to NARAINDAS v. STATE OF M.P., on which reliance was placed on behalf of the respondents which again fully supports this conclusion. In that case, the provisions of Madhya Pradesh Prathamik, Middle School Tatha Madhamik Shiksha (Pathya Pustakon Sambandhi) Vyavastha Adhiniyam (Act 13 of 1973), came up for consideration; that Act was enacted by the Legislature for the purpose of making recommendations to prescribe textbooks for the various secondary schools in the State of Madhya Pradesh ; one of the functions entrusted to the Board constituted under that Act was to select textbooks for the prescribed courses of instruction and syllabi for the higher secondary schools; Section 4 of that Act provided that the State Government may, by order, prescribe textbooks according to syllabi laid down under Section 3 provided that the textbooks for the secondary education shall not be prescribed without prior consultation with the Board ; the Board consisted of the Chairman and certain other members; the State Government in exercise of its powers under Section 4(1) of that Act issued a notification according its approval to certain textbooks on certain subjects; this action of the State Government was challenged on several grounds out of which one ground was that it was only the Chairman of the Board who has taken decision to recommend the text-books and as that decision was taken without consultation with the other members of the Board, the notification according approval by the State Government was invalid; the stand taken on behalf of the State was that the Chairman was entitled on behalf of the Board to make recommendations and the recommendations made by him in the eye of the law are the recommendations of the Board; on this aspect of the matter, Bhagwati, J (as His Lordship then was) has observed thus :-
"The recommendation of the text books was not made by the Chairman as an emergency measure, at any rate, that was not the plea taken by the respondents. Sub-section (4) of Section 15 is a sort of residuary provision which confers power on the Chairman to "exercise such other powers as may be vested in him by Regulations." But there is nothing in the Regulations which vests in the Chairman the power of the Board to recommend or give advice in relation to text books to be prescribed by the State Government. In fact, no power of the board is vested in the Chairman by the Regulations. Thus, we do not find anything in the Actor in the Regulations which provides that the power of the Board to recommend or give advice in relation to text books to the State Government - which power is necessarily by implication conferred on the Board under Section 4 Sub-section (1) proviso - shall be exercisable by the Chairman so that consultation with the Chairman would be tantamount to consultation with the Board. Realising this difficulty, the learned Advocate General relied on a decision of the Board dated 12th October 1971, Ex.9, to the affidavit in reply filed by Chaturvedi on behalf of the respondents, and contended that by this decision the Board authorised the Chairman to take all necessary steps for the purpose of proceeding further with the work of the text books improvement scheme which consisted of selection and approval of text books for the purpose of prescription or recommendation by the Board, and the Chairman was therefore entitled to act on behalf of the Board in recommending or giving advice in relation to text books to the State Government.
Now we do not dispute the general proposition that when a power or function is given by the statute to a corporate body and no provision is made in the statute as to how such power or function shall be exercised, the corporate body can by a resolution passed at a general meeting devise its own mode of exercising such power or function, such as authorising one or more of the members to exercise it on behalf of the Board. But here this broad proposition would have no application. There are several provisions in the Act of 1965 which provide for delegation of the powers and functions of the Board to the Chairman and other Committees by means of Regulations, if, therefore, any power or function of the board is intended to be made exercisable by the Chairman, that can only be done through the mechanism of the Regulations. The Board cannot, by a resolution passed at a general meeting, authorise the Chairman to exercise a particular power or function entrusted to the board. The decision of the Board dated 12th October 1971 relied on cannot therefore help the respondents even if it were construed as authorising the Chairman to exercise the power of the Board to recommend or give advice in relation to text books to be prescribed by the State Government."
18. Mr. Somayyaji had placed great reliance on the Judgment of the Supreme Court in Batuk Deo Pati Tripathi's case which relate to the provisions of Article 235 of the Constitution under which the power of control over the subordinate judiciary vests in the High Court. One of the questions raised before the Supreme Court was that under Article 216 'High Court' means the entire body of Judges appointed to the Court and therefore, the control over the subordinate judiciary which is vested by Article 235 in the High Court must be exercised by the whole body of judges. The thrust of the argument before the Supreme Court was that the High Court could not delegate its functions to a Judge or a small body of judges of the Court. On considering this argument, Chandrachud, J. (as His Lordship then was) speaking for the Court, observed thus :-
"For answering this question it is necessary in the first place to bear in mind that the power of control over the subordinate Courts which is vested in the High Court comprises such numerous matters, often involving consideration of details of the minutest nature, that if the whole High Court is required to consider every one of those matters, the exercise of control instead of becoming effective will tend to cause delay and confusion in the administration of Justice in the State. A construction which will frustrate the very object of the salient provisions contained in Article 235 ought, in so far as possible, to be avoided. The control vested in the High Court by that Article comprehends, according to our decisions, a large variety of matters like transfers, subsequent postings, leave, promotions other than initial promotions, imposition of minor penalties which do not fall within Article 411, decisions regarding compulsory retirements, recommendations for imposition of major penalties which fall within Article 411, entries in character rolls and so forth. If every Judge is to be associated personally and directly with the decision on every one of these matters, several important matters pertaining to the High Court's administrative affairs will pile into arrears like Court arrears. In fact, it is no exaggeration to say that the control will be better and more effectively exercised if a smaller committee of Judges has the authority of the Court to consider the manifold matters falling within the purview of Article 235. Bearing in mind therefore the nature of the power which that Article confers on the High Courts, we are of the opinion that it is wrong to characterise as 'delegation' the process whereby the entire High Court authorises a Judge or some of the Judges of the Court to act on behalf of the whole Court. Such an authorisation effectuates the purpose of Article 235 and indeed without it the control vested in the High Courts over the subordinate Courts will tend gradually to become lax and ineffective. Administrative functions are only a part, though an important part, of the High Court's constitutional functions. Judicial functions ought to occupy and do in fact consume the best part of a Judge's time. For balancing these two-fold functions it is inevitable that the administrative duties should be left to be discharged by some on behalf of all the Judges. Judicial functions brook no such sharing of responsibilities by any instrumentality."
In our view, the aforesaid Judgment, in the light of our conclusions, does not help the appellants, and there is no similarity between the functions of the High Court and the Zilla Parishad which is an elected body. We agree with the observations of the learned single Judge that the Judges of the High Court are all constitutional functionaries. They neither belong to any political party nor/are they elected to the high office on the basis of party-ticket. But it is not so in the case of Zilla Parishad whose members are elected. The analogy of exercise of power by a committee of Judges may not be apposite to the exercise of power by an Adhyaksha of a Zilla Parishad.
19. As a result of the aforesaid discussion, we hold that the Adhyaksha cannot be authorised by the Zilla Parishad to exercise its power under Section 5(3) of the Act and that it is the Zilla Parishad alone which has to nominate two persons from the Backward Classes.
20. Another argument had also been raised that as One Man Committee could be appointed, authorisation of Adhyaksha by the Zilla Parishad may be treated as appointment of Adhyaksha as One Man Committee. This contention is liable to be rejected straightaway in view of our aforesaid conclusion that under Section 5(3) the power has to be exercised by the Zilla Parishad alone.
21. On the question as to the effect of ratification by the Zilla Parishad of the nominations made by Adhyaksha, we find ourselves in agreement with the observations of the learned single Judge that there cannot be ratification of an ultra vires act. As we have found that the power of nomination could not be conferred on the Adhyaksha by the Zilla Parishad, we fail to understand as to how nominations made by the Adhyaksha under that power can be held to be valid as the same has been ratified by the Zilla Parishad. An act which is wholly without jurisdiction does not become valid by ratification.
22. No other point arises for consideration.
23. For the reasons recorded above, we find no merit in these appeals, and accordingly dismiss them without any order as to costs.