Bombay High Court
Sau. Vimal Bhimrao Rathod vs State Of Maharashtra on 7 January, 2009
Author: D.D.Sinha
Bench: D.D.Sinha, A.P.Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2616 OF 2008
WITH
WRIT PETITION NO. 2627 OF 2008
1. WRIT PETITION NO. 2616 OF 2008 :
Sau. Vimal Bhimrao Rathod,
Aged about 40 yrs., Member,
Gram Panchayat Ful Umari,
Tq. Manora, Distt. Washim. ::
PETITIONER
-: Versus :-
1. State of Maharashtra,
through Additional Commissioner,
Amravati Division, Amravati.
2. The Additional Collector,
Washim, Tq. & Distt. Washim.
3. The Secretary,
Gram Panchayat, Ful Umari,
Tq. Manora, Distt. Washim.
4. Anil Ajabrao Deshmukh,
r/o. Ful Umari, Tq. Manora,
Distt. Washim. : :
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2
RESPONDENTS
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Mr.M.A.Vaishnav, Adv. for Petitioner.
Mr. N. W. Sambre, Govt. Pleader for Respondents 1 & 2.
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1. WRIT PETITION NO. 2627 OF 2008 :
Abdul Sattar Suleman,
Aged about 55 yrs., Occ. Agriculturist,
Member of Gram Panchayat, Mahan,
r/o. Mahan, Tq. Barshi Takli,
Distt. Akola. ::
PETITIONER
-: Versus :-
1. Additional Commissioner,
Amravati Division, Amravati.
2. Additional Collector,
Akola, Tq. & Distt. Akola.
3. Secretary,
Gram Panchayat, Mahan,
Tq. Barshitakli, Distt. Akola.
4. Shivanand Shivram Janorkar,
Aged about 46 yrs., Occ. Agrilst.,
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Member, Gram Panchayat, Mahan,
r/o. Mahan, Tq. Barshi-takli,
Distt. Akola. : :
RESPONDENTS
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Mr.S.D.Chopde, Adv. for Petitioner.
Mr. N. W. Sambre, Govt. Pleader for Respondents 1 & 2.
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Date of reserving the Judgment : 17.12.2008.
Date of pronouncement of Judgment : 07.01.2009.
CORAM: D.D.SINHA & A.P.BHANGALE, JJ.
DATED: 07.01.2009.
ORAL JUDGMENT : (Per D.D.Sinha, J)
1. Heard Mr. M. A. Vaishnav and Mr. S.D.Chopde, learned counsel for petitioners in Writ Petition Nos. 2616 of 2008 and 2727 of 2008 respectively as well as Mr. N.W.Sambre, learned Government Pleader for Respondents.
::: Downloaded on - 09/06/2013 14:13:00 ::: 42. In view of the conflicting opinion expressed by two learned Single Judges of this Court in respect of exercise of appellate powers by the Additional Commissioner u/s. 16 (2) of the Bombay Village Panchayats Act, 1958 (hereinafter referred to as " the BVP Act "), the Hon'ble Chief Justice referred said issue to this Division Bench.
3. The learned Single Judge of Aurangabad Bench of Bombay High Court in the case of Atmaram Chapa Sandanshiv and another vs. Shamshadbi Bashir Shah Fakir and Others reported in 2008(3) Mh.L.J. 906 has taken a view that, the State Government, in view of provisions of Section 182 (1) of the BVP Act is legally entitled to delegate powers vested in it u/s. 16 (2) of the BVP Act to the Commissioner only and it is impermissible for the Additional Commissioner to exercise those powers.
::: Downloaded on - 09/06/2013 14:13:00 ::: 5Another learned Single Judge of the Nagpur Bench of Bombay High Court in view of the notification dt.
20.4.1977, issued by the State Government in exercise of powers conferred by sub-section (3) of Section 13 of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as "the Code") has expressed different view;
however, did not conclude the issue one way or the other and in view of decision of the Apex Court reported in (2001) 2 SCC 247 (Dr.Vijay Laxmi Sadho .vs. Jagdish (Para
33), referred the issue to the Hon'ble Chief Justice vide reference order dt. 14.7.2008 for constituting a Division Bench to resolve the controversy in issue. It is in this background that the Hon'ble Chief Justice has referred the issue to this Division Bench for resolving the controversy.
4. The facts which have given rise to the controversy in question, in nutshell, are as follows :
::: Downloaded on - 09/06/2013 14:13:00 ::: 6The petitioner in Writ Petition No. 2616 of 2008, at the relevant time, was an elected member of Gram Panchayat Ful Umari, Tq. Manora, Distt. Washim. Since she incurred disqualification, the Additional Collector vide order dt. 9.10.2007 disqualified her to be a member of Gram Panchayat in view of provisions of Section 14 (h) of the BVP Act. The petitioner filed an appeal against the said order u/s. 16 (2) of the Act before the Additional Commissioner. The Additional Commissioner dismissed the appeal vide order dt.27.3.2008. Hence, the petitioner has filed a Petition No. 2616 of 2008 before this Court questioning validity of exercise of appellate powers stipulated u/s. 16 (2) of the BVP Act by the Additional Commissioner for want of jurisdiction as well as in view of earlier decision of the learned Single Judge of this Court in the case of Atmaram Chapa Sandanshiv and another. In another Writ Petition No. 2627 of 2008, similar legal challenge is raised by the petitioner. Since both the ::: Downloaded on - 09/06/2013 14:13:00 ::: 7 petitions raise common legal challenge, they are heard and disposed of by this judgment.
5. Mr. Vaishnav, learned counsel for the petitioner, has contended that, against the order of disqualification passed by Collector/Additional Collector u/s. 14 (h) of the Act, an appeal lies to the State Government u/s. 16 (2) of the said Act. It is further contended that the State Government is only entitled to delegate these powers to the Commissioner u/s. 182 (1) of the Act. It is the case of petitioner that there was no general or special order passed by the State Government at any point of time u/s.
182 (1) of the Act delegating its powers u/s. 16 (2) of the Act to the Additional Commissioner and therefore, the appellate powers vested in the State Government u/s. 16 (2) of the Act can either be exercised by the State Government itself or as per delegation, by the Commissioner and not by the Additional Commissioner in ::: Downloaded on - 09/06/2013 14:13:00 ::: 8 absence of any general or special order issued by the State in view of provisions of Section 182 (1) of the Act in favour of Additional Commissioner.
6. It is further contended by Mr.Vaishnav, learned Counsel that the learned Single Judge in the case of Atmaram Chappa Sandanshiv and another, therefore, was justified in holding that it is impermissible for the Additional Commissioner to exercise jurisdiction u/s. 16 (2) of the Act and was also justified in holding that the decision rendered in the appeal by Additional Commissioner was without jurisdiction. Mr.S.D.Chopde, learned Counsel appearing for the petitioner in the connected petition adopted the arguments advanced by Mr.Vaishnav Adv.
7. Mr. N.W.Sambre, Government Pleader has submitted that the State Government in exercise of power ::: Downloaded on - 09/06/2013 14:13:00 ::: 9 conferred by sub-section (3) of Section 13 of the Code has issued notification No.ZPA 1074/4342(468)-XII, dt.20/4/1977 whereby powers u/s. 16 (2) of the BVP Act were conferred upon the Additional Commissioner to the extent of his jurisdiction. It is contended that the said notification was not placed before the learned Single Judge of the Aurangabad Bench of Bombay High Court and therefore, the learned Judge did not have occasion to consider this aspect of the matter. The learned Government Pleader further contended that, in view of said notification dt. 20.4.1977, the opinion expressed by the learned Single Judge of this Bench in the order of reference is sustainable in law.
8. The question which falls for our consideration is "whether the Additional Commissioner is legally competent to exercise appellate power u/s. 16 (2) of the BVP Act" ?
::: Downloaded on - 09/06/2013 14:13:00 ::: 109. Before we consider the controversy in issue, it will be appropriate to re-produce the relevant provisions of the Acts for ready reference.
Provisions of Section 14 (h) reads thus :
"Section 14 (1) : No person shall be a member of a panchayat or continue as such, who -
(a)...............
Provided that, no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years.):
(b) to (g) ...............
(h) fails to pay any tax or fee due to the Panchayat (or the Zilla Parishad within three months from the date on which the amount of such tax or fee is demanded, an a bill for the purpose is duly served on him; or) (h-1) fails to pay the amount of surcharge or charge under section 140 or the amount ordered to be paid under section 178 together with interest, if any, within the period provided in that behalf, and where an appeal has been made, then within one month from the date ::: Downloaded on - 09/06/2013 14:13:00 ::: 11 of receipt of the decision rejecting such appeal)."
Provisions of Section 16 (2) of the Act reads thus :
"(2) (If any question whether a vacancy has occurred under this section is raised by the Collector suo motu or on an application made to him by any person in that behalf, the Collector shall decide the question as far as possible within sixty days from the date of receipt of such application. Until the Collector decides the question, the member shall not be disabled under sub-section (1) from continuing to be a member.) Any person aggrieved by the decision of the Collector may, within a period of fifteen days from the date of such decision, appeal to the State Government, and the orders passed by the State Government in such appeal shall be final :
Provided that no order shall be passed under this sub-section by the Collector against any member without giving him a reasonable opportunity of being heard. "
Provisions of Section 182 (1) of the Act are as ::: Downloaded on - 09/06/2013 14:13:00 ::: 12 follows :
"The State Government may, by notification in the Official Gazette, authorise the Commissioner or any other Officer to exercise any of the powers which may be exercised by the State Government under this Act. "
10. The above referred provisions of the BVP Act makes it explicitly clear that the appeal against the order of disqualification passed on any of the grounds mentioned in sub-clauses of Section 14 lies before the State Government as per the provisions of Section 16 (2) of the BVP Act. Section 182 (1) empowers the State Government to delegate any of its powers which are exercised by the State Government under the BVP Act to the Commissioner or any other Officer by issuing notification in the Official Gazette. It is not in dispute that, vide notification dt. 11.11.1995 issued by the State Government, appellate powers u/s. 16 (2) of the BVP Act were already delegated to the Commissioner and ::: Downloaded on - 09/06/2013 14:13:00 ::: 13 therefore, it is not in dispute that the Commissioner is empowered to exercise appellate powers vested in the State Government u/s. 16 (2) of the BVP Act. Similarly, the State Government, in fact, has issued notification dt.20.4.1977 whereby the Additional Commissioner has been specifically empowered to exercise appellate powers u/s. 16 (2) of the BVP Act conferred on the Commissioner by the earlier notification.
The notification dt.20.4.1977 reads thus :
RURAL DEVELOPMENT DEPARTMENT Mantralaya, Bombay 400 032, dated the 20 th April, 1977 MAHARASHTRA LAND REVENUE CODE, 1966.
290.
No. ZPA 1074/4342(468)-XII. - In exercise of the powers conferred by sub-section (2) of section 13 of the ::: Downloaded on - 09/06/2013 14:13:00 ::: 14 Maharashtra Land Revenue Code, 1966 (Mah.XLI of 1966), the Government of Maharashtra hereby directs that the powers and the duties and functions conferred on the Commissioner under the Acts specified in column 1 of the Schedule appended thereto shall also be exercised and discharged by every Additional Commissioner within his jurisdiction to the extent specified in column 2 of the said schedule.
Schedule ____________________________________________________________ The Acts Powers, duties & functions (1) (2) ____________________________________________________________
1. The Maharashtra Zilla Parishads Under sections 40 (2), 62 (3), and Panchayat Samitis Act, 68A, 81(4), 82(3) and 272. 1961 (Mah.V of 1962).
2. The Bombay Village Panchayts Under sections 33(5), 39(3), Act, 1958 (Bom.III of 1959). 154 and powers of the State Government under sections 16(2) and 40(2) delegated to the Commissioners by Government Notification, Rural Development Department No.VPA 1270/53138-E, dated the 8th December, 1970.
_____________________________________________________________________ ::: Downloaded on - 09/06/2013 14:13:00 ::: 15 By order and in the name of the Governor of Maharashtra.
K. S. TATA, Under Secretary to Government.
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11. The notification was issued by the State Government in exercise of power conferred on it by sub-
section (3) of Section 13 of the Code. The said notification in no uncertain terms demonstrates that the powers and duties and functions conferred upon the Commissioner under the BVP Act specified in Column No.1 of the Schedule appended thereto shall also be exercised and discharged by every Additional Commissioner within his jurisdiction to the extent specified in Column no.2 of the said Schedule. Column No.1 of Schedule of the notification mentions the names of the Acts and Column No.2 stipulates powers, duties and functions to be discharged by the Additional Commissioner within his jurisdiction under such Acts. Serial No.2 in Column no.1 of the ::: Downloaded on - 09/06/2013 14:13:00 ::: 16 Schedule mentions the name of the Act i.e. the Bombay Village Panchayats Act, 1958 and corresponding entry in Column No.2 of the Schedule, mentions Section 16 (2) of the Bombay Village Panchayats Act. It is, therefore, evident that, by virtue of this notification dt. 20.4.1977, the Additional Commissioner is competent to exercise appellate powers u/s. 16 (2) of the BVP Act.
12. Section 13 of the Code deals with the powers and duties of the Revenue Officers and sub-section (1) contemplates as under :
" Section 13(1) :
The Revenue Officers of and above the rank of a Tahsildar (not being a Additional Commissioner, Assistant Commissioner, Additional Collector or Additional Tahsildar) shall exercise the powers and discharge the duties and functions conferred and imposed on them respectively under this Code or under any law for the time being in force, and so far as is consistent therewith, all such other powers, duties and functions of appeal, superintendence and control ::: Downloaded on - 09/06/2013 14:13:00 ::: 17 within their respective jurisdiction; and over the Officers subordinate to them as may from time to time be prescribed by the State Government:
Provided that, the Collector may also exercise throughout his district all the powers and discharge all the duties and functions conferred or imposed on an Assistant or Deputy Collector under this Code or under any law for the time being in force and a Tahsildar shall also exercise such powers as may be delegated to him by the Collectors under the general or special orders of the State Government. "
Similarly, sub-section (3) of Section 13 of the Land Revenue Code stipulates as under :
" the Additional Commissioner and the Assistant Commissioner, and the Additional Collector and the Additional Tahsildar shall each exercise within his jurisdiction or part thereof such powers and discharge such duties and functions of the Commissioner, the Collector or, as the case may be, the Tahsildar under the provisions of this Code or under any law for the time being in force, as the State Government may, by notification in the Official Gazette, direct in this behalf.::: Downloaded on - 09/06/2013 14:13:00 ::: 18
13. Plain reading of provisions of sub-section (3) of Section 13 of the Code shows that it empowers the State Government to confer powers, duties and functions exercised by the Commissioner on the Additional Commissioner not only under the provisions of the Land Revenue Code, but also under any law for the time being in force by issuing notification in the Official Gazette in this regard. Notification dt. 20.4.1977 has been issued by the State Government in exercise of powers conferred on it under above referred sub-section (3) of Section 13 of the Code and therefore, even if by virtue of notification dt.
11.11.1995 issued by the State Government in exercise of powers u/s. 182(1) of the BVP Act, powers u/s. 16 (2) of the BVP Act are delegated in favour of Commissioner, that does not take away power and jurisdiction of the State Government to issue notification under sub-section (3) of Section 13 of the Code, empowering the Additional Commissioner to discharge the duties and functions ::: Downloaded on - 09/06/2013 14:13:00 ::: 19 exercised by the Commissioner not only under the Code alone, but also under the BVP Act; since the Commissioner, Additional Commissioner, Assistant Commissioner, Collector, Additional Collector, Tahsildar etc. are all Officers of the Revenue Department of State Government.
14. The State Government in exercise of power u/s.
182(1) of the BVP Act delegated appellate powers vested in it u/s. 16 (2) of the BVP Act in favour of the Commissioner. By virtue of provisions of Section 182 (1), the State Government is legally entitled to delegate the said appellate power even in favour of any other Officer of the Revenue department including Additional Commissioner, by issuing appropriate notification in this regard u/s. 182 (1), by withdrawing the notification dt.
11.11.1995. Similarly, the provisions of sub-section (3) of Section 13 of the Code empowers the State Government to confer upon Additional Commissioner duties and functions ::: Downloaded on - 09/06/2013 14:13:00 ::: 20 exercised by the Commissioner not only under the provisions of the Code, but under any law for the time being in force which includes the BVP Act.
15. It is necessary to consider that the power vested in the State Government u/s. 182 (1) of the BVP Act is distinct and different than the one vested in the State Government under sub-section (3) of Section 13 of the Code. U/s. 182 (1) of the BVP Act, power of delegation vested in the State Government is restricted and can be exercised only in respect of provisions of the BVP Act.
Whereas, the power vested under sub-section 3 of Section 13 of the Code is of general nature which empowers the State Government to confer duties and functions exercised by the Commissioner not only under the provisions of the Code, but also under any other law for the time being in force (which includes the BVP Act) on Additional Commissioners, by issuing notification in the Official ::: Downloaded on - 09/06/2013 14:13:00 ::: 21 Gazette in this behalf. Since the power vested in the State Government under Section 182 (1) of the Act and u/s. 13 (3) of the Code operates in different and distinct areas, exercise of power by the State Government under these respective provisions does not result in any kind of inconsistency or conflict with each other or with the provisions of either of the Acts. Hence, we are of the view that the State Government is wholly competent to do so. It is also pertinent to note that petitioners have not questioned validity of the notification dt.20.4.1977 issued by State Government in exercise of powers under sub-
section (3) of Section 13 of the Code.
16. The learned Single Judge in case of Atmaram Chapa Sandanshiv and another only considered the provisions of the Bombay Village Panchayats Act and in para 6 of the Judgment observed thus :
::: Downloaded on - 09/06/2013 14:13:00 ::: 22" From perusal of the aforesaid provisions, it would be clear that the delegation of power exercisable by the State Government can be exercised by the Commissioner or any other officer. However, the said delegation is required to be made by issuing a notification which is required to be published in Official Gazette. In the instant matter, the powers are exercisable in terms of provisions of section 16(2) by the State Government and said powers are delegated to the Commissioner by observing procedure prescribed in that behalf. Learned counsel for the respondent has placed reliance on provisions of section 182(4) and contended that such delegation is permissible by the Commissioner to any lower officer. However, relevant sub-section speaks about delegation in respect of the powers which can be exercised by the Commissioner. Therefore, it is impermissible to resort to section 184(4) and delegate the functions which can be exercised by the State Government. In the instant matter, it is to be noted that the functions in respect of hearing and disposal of the appeal are to be exercised by the State Government in terms of section 16 (2) of the Act and those powers can be delegated to the Commissioner in exercise of powers under section 182(1) of the said Act. Learned counsel for the petitioners has invited my attention to a notification dt. 11.11.1995 issued by the State Government thereby delegating the powers exercisable by the State Government under section 16(2) of the Act in favour of the Commissioner. In this view of the matter, it was impermissible for Additional Commissioner to exercise jurisdiction and ::: Downloaded on - 09/06/2013 14:13:00 ::: 23 proceed to decide appeals. The decision rendered in appeals is thus without jurisdiction. "
17. The above conclusions arrived at by the learned Single Judge undoubtedly were without taking into consideration the notification dt. 20.4.1977, which was admittedly not brought to the notice of the learned Single Judge. However, after taking into consideration the notification dt. 20.4.1977 issued by the State Government in exercise of powers conferred on it under sub-section (3) of Section 13 of the Code, we are of the view that the law laid down by the learned Single Judge in case of Atmaram Chappa Sandanshiv and another does not depict the correct position in law since the said decision is rendered by the learned Single Judge without taking into consideration the notification dt.20.4.1977 and therefore, the said decision is overruled.
::: Downloaded on - 09/06/2013 14:13:00 ::: 2418. We, therefore, answer the question in affirmative. Both the petitions, for the reasons stated above, are dismissed. Rule discharged. No order as to costs.
JUDGE JUDGE
jaiswal
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