IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 893/2007 Reserved on: 14.9.2009 Decided on:17.9. 2009 ________________________________________________ Ved Parkash Sharma. …Petitioner. Versus State of Himachal Pradesh and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Acting Chief Justice. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Ashok Sharma, Advocate. For the Respondents: Mr. R.K. Bawa, Advocate General with Mr. P.K. Sharma, Additional Advocate General and Mr. J.K. Verma, Deputy Advocate General for respondent No.1. Mr. Dilip Sharma, Advocate for respondent No.2. Mr. Sanjeev Bhushan, Advocate for respondent No.3. ________________________________________________________ Rajiv Sharma, Judge. A notice under section 248 of the Municipal Corporation Act, 1994 (hereinafter referred to as ‘the Act’ for brevity sake) was issued to respondent No.3 on 12.5.2000. The Commissioner, Municipal Corporation, Shimla passed orders on 6.6.2001. He came to a definite conclusion that earlier sanction was accorded on the basis of mutation No. 165 dated 17.12.1999 which stood cancelled and 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 consequently sanction of map given on 15.3.2000 was withdrawn. He had also ordered that proceedings under sections 253/254 shall also be initiated against respondent No.3. The Commissioner, Municipal Corporation passed the orders on 5.3.2003. He ordered respondent No.3 to remove unauthorized construction within two weeks from the receipt of the order. Respondent No.3 assailed this order before the appellate authority prescribed under the Act. Respondent No.3 also approached this Court by way of CWP No. 161/2003. It was decided on 25.2.2005. In sequel to the judgment rendered by this Court, respondent No.3 preferred a revision before the Principal Secretary (UD). He passed the following order on 17.1.2006: “Case called on 17.1.2006. Shri Sanjeev Bhushan, Advocate present along with petitioner Smt. Neelam Joshi, Shri Ved Parkash Sharma, respondent No.2 present during the hearing and from the Municipal Corporation side Dr. A.K. Sharma, Joint Commissioner, N.C. Shimla, Sh. S. Gupta, Ar. Planner and Shri Bhuvnesh Chaturvedi (J.E.) from M.C. Shimla were present. Both the parties heard. Status quo may be maintained until the issue of title is decided by the appropriate authority and the M.C. Shimla is informed of this. M.C. may thereafter take action as per law.” Mr. Ashok Sharma, Advocate has vehemently argued that once the proceedings were initiated against respondent No.3 which have culminated into the issuance of order dated 5.3.2003, the Principal Secretary (UD) has no jurisdiction to pass the impugned order. He further argued that Chapter-XIV of the Act deals with building regulations and the remedy against the order of the Commissioner, 3 Municipal Corporation to remove the unauthorized construction is provided by way of appeal to the learned District Judge of the Municipal area. In other words, his submission is that once the special provision exists i.e. section 253, the general provision i.e. section 403 of the Act could not be invoked by the Principal Secretary (UD). Mr. Sanjeev Bhushan, Advocate appearing on behalf of respondent No.3 has argued that the only remedy provided to the petitioner after revocation of the building permission was to file revision petition. We have heard the learned counsel for the parties and have gone through the pleadings of the parties. The permission was accorded in favour of respondent No.3 to raise the construction by the Commissioner, Municipal Corporation on 15.3.2000. The same stood revoked by the Commissioner, Municipal Corporation on 6.6.2001. Thereafter in further proceedings, he passed the order of removal of unauthorized construction on 5.3.2003. In case respondent No.3 was aggrieved by the order passed by the Commissioner, Municipal Corporation, the remedy available to her was the one provided under section 253 of the Act by filing appeal before the District Judge. We have been informed at the Bar that in fact the appeal was preferred against the order dated 5.3.2003, however, the same was withdrawn. Respondent No.3 was well advised to pursue the remedy of appeal which he has already availed. However, respondent No.3 taking a cue from the judgment of this Court rendered in CWP No. 161/2003 preferred a revision before the Principal Secretary (UD). He passed the impugned order on 4 17.1.2006. The order dated 6.6.2001 stood merged in order dated 5.3.2003. The principle of merger also applies to administrative orders. The only remedy available, as noticed above, to respondent No.3 was to file an appeal and in these circumstances preferring a revision before the Principal Secretary (UD) was misconceived. The Principal Secretary (UD) lacked the jurisdiction to entertain and hear the revision petition in view of express provision of section 253 of the Act. A bare perusal of Chapter-XIV of the Act reveals that it is a self contained Chapter. The manner in which the application is to be submitted before the erection of a building and other ancillary steps are provided therein. There is also a provision whereby the permission granted can be withdrawn under section 248 of the Act. The demolition orders can be passed by the Commissioner under section 253 of the Act and person aggrieved by his order can prefer an appeal. Section 253 is a special provision and in view of this respondent No.3 could not revoke the general provisions of section 403 of the Act. Section 403 shall be attracted only in those cases where a specific remedy has not been provided. The principle generalia specialibus non derogant is attracted in the present case. The Apex Court in Venkateswara Rao versus Government of Andhra Pradesh and others, AIR 1966 SC 828 has held as under: “12. The next question is whether the order dated April 18, 1963, can be sustained under S. 72 of the Act. Section 72 of the Act reads- "Power of revision and review by Government: 5 (1) The Government may, either suo motu or on an application from any person interested, call for and examine the record of a Panchayat Samithi or a Zilla Parishad or of their Standing Committees in respect of any proceeding to satisfy themselves as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein; and, if , in any case, it appears to the Government that any such decision or order should be modified, annulled or reversed or remitted for reconsideration, they may pass orders accordingly: Provided that the Government shall not pass any order prejudicial to any party unless such party has had an opportunity of making a representation. (2)* * * * * (3) The Government may suo motu at any time or on an application received from any person interested within ninety days of the passing of an order under sub-s. (1), review any such order if it was passed by them under any mistake, whether of fact or of law, or in ignorance of any material fact. The provisions contained in the priviso to sub-s. (1) and in sub-s. (2) shall apply in respect of any proceeding under this sub-section as they apply to a proceeding under sub-s. (1)." Sub-section (1) of S. 72 of the Act confers a wide power on the Government to revise any decision or order passed in any proceeding under the Act. Sub-section (3) thereof confers a power on the Government to review the order made under subs-s. (1) thereof if it was passed by the Government under any mistake, whether of fact or of law, or in ignorance of any material fact. To attract sub-s. (3), the order sought to be reviewed should have been made under sub-s. (1). To appreciate the scope of S. 72(1) 6 of the Act, it is necessary to compare the said sub-section with S. 62 of the Act. Under S. 62 (1), the Government may, by order in writing, cancel any resolution passed by a Panchayat Samithi, if in its opinion such resolution is not legally passed or is in excess or abuse of the powers conferred by or under the Act or for any other reasons mentioned therein. Under sub-section (2) of section 62 the Government shall, before taking action under sub-s. (1) thereof shall give the Panchayat Samithi or the Zilla Parishad, as the case may be, an opportunity for explanation. Section 72 confers a general power on the Government; and on its terms, if there was no other section, it can cancel a resolution of a Panchayat Samithi. But, S. 62 of the Act confers a special power on the Government to cancel a resolution passed by a Panchayat Samithi in the circumstances mentioned therein. The principle generalia specialibus non derogant compels us to exclude from the operation of S. 72 the case provided for under S. 62. If so construed, it follows that if the order reviewed fell under the scope of S. 62, it could not be reviewed under S. 72, for S. 72 (3) enables the Government only to review an order made under sub-section (1) of S. 72. So, the learned counsel for the State as well as for the 4th respondent made a serious effort to bring the order of the Government dated March 7, 1962, within the terms of S. 72 (1) of the Act. As the argument turns upon the terms of the said order, it may conveniently be read at this stage: Government of Andhra Pradesh Planning and Local Administration Department. MEMORANDUM NO. 1354 /Prog.II/61-2, Dated 7-3-1962. Sub: Community Development Programme- Chintalapudi Block-Shifting of Primary Health Centre from Dharmajigudem to Lingapalem - orders issued. Ref: 1. Representation of Sri G. Punnneswararao and others, dated 31-6-1961. 7 2. Letter From Collector, West Godavari, No. O1.5642/61, dated 22-9-1961. The Panchayat Samithi, Chintalapudi, at its meeting held on 25-8-1960 unanimously resolved to locate the Primary Health Centre at Dharmajigudem. Later, the Panchayat Samithi at its meeting held on 29-5-1961 resolved to shift the Primary Health Centre permanently to Lingapalem village. The President, Dharmajigudem Panchayat, and others have represented to Government against acceptance of the resolution passed by the Samithi at its meeting held on 29-5-1961. This representation has been carefully examined by the Government in consultation with the Collector, West Godavari. Under Rule 6 of the Rules for the establishment and maintenance of Primary Health Centres by Panchayat Samithis made under the provisions of the Panchayat Samithis and Zilla Parishads Act, 1959, the Primary Health Centre once established shall not ordinarily be shifted to another place within the Block unless the Samithi resolves by 2/3rd majority of the members present at the meeting as required under rule 7 of the said rules. In the present case the Primary Health Centre was already functioning at Dharmajigudem and the resolution of the Panchayat Samithi dated 29-5-1961 did not get the requisite support of the Samithi Members as required under rule 7. In the above circumstances, the Government consider that there are no valid reasons for shifting the Primary Health Centre from Dharmajigudem to Lingapalem. The Block Development Officer, Chintalapudi, is directed to take action accordingly. (Sd.) B. Pratap reddi, Deputy Secretary to Government. It was said that the said order did not mention the section whereunder it was passed, that it did not cancel any resolution, that it did not in terms approve or 8 disapprove any resolution, that it considered other orders issued and finally gave a direction to the Block Development Officer to take action in accordance with the terms of the order. In short, the argument of the learned counsel was that the order was not for the cancellation of the resolution of the Panchayat Samithi but one made in terms of S. 72 of the Act. We are not impressed by this argument. The preamble to the order clearly mentions that the Panchyat Samithi, Chintalapudi, at its meeting held on May 29, 1961, resolved to shift the Primary Health Centre permanently to Lingapalem village. Then it states that the President of the Dharmajigudem Panchayat and others had represented to the Government against the acceptance of the said resolution. The order then records that the Government had carefully considered the said representations. Then it gives the reason that the said resolution was bad inasmuch as that under R. 6 of the Rules the Primary Health Centre once established should not ordinarily be shifted to another place within the Block, unless the Panchayat Samithi resolves by two-thirds majority of the members of the Samithi present at the meeting as required by R. 7 of the Rules. Then it points out that the Primary Health Centre was functioning at Dharmajigudem and, therefore, the resolution, not having the support of the requisite majority, did not comply with R. 7 of the Rules. For the said reasons the order concludes that there were no valid reasons for shifting the Primary Health Centre from Dharmajigudem to Lingapalem. The Government then gives the consequential directions to the Block Development Officer to take action accordingly. An analysis of the order demonstrates beyond any reasonable doubt that it is nothing more than a cancellation of the resolution passed by the Panchayat Samithi on May 29, 1961. The mere fact that the order does not use the expression " cancel" will not make it any the less an order 9 cancelling the resolution. We, therefore, hold that the order of the Government dated March 7, 1962, was one made under S. 62 of the Act and, therefore, it could not be reviewed under S. 72 thereof. Similarly, their Lordships of the Hon’ble Supreme Court in State of Gujarat and another versus Patel Ramjibhai Danabhai and others, AIR 1979 SC 1098 have held that generalia specialibus non derogant is a cardinal principle of interpretation. Their Lordships have held as under: “26. Thus, Sec. 33 (6) is, in terms, restricted in its application to the case of an unregistered dealer whose modus operandi to evade tax involves ab initio disregard of the law. It does not apply to a registered dealer who has escaped assessment or has been under-assessed or assessed at a lower rate or has been wrongly allowed any deductions or has concealed any material particulars relating to sales or purchases or has knowingly furnished incorrect returns. The case of such a registered dealer will fall under S. 35 and not under S. 33 (6). Section 33 (6) is a special provision confined to a particular class of tax-evaders, namely, unregistered dealers; while Section 35 is a general provision to deal with cases of escaped assessment or under- assessment. Generalia specialibus non derogant is a cardinal principle of interpretation. It means that the general provisions must always yield to the special provisions. Construed in accordance with this fundamental principle, the special class of unregistered dealers covered by Sec. 33 (6) must be taken to have been excluded from the purview of the general provisions in S. 35. Thus considered, it is clear that the case of an unregistered dealer who 10 evades tax by committing the double default specified in S. 33 (6), action can be taken only under that Section and not under S. 35.” Mr. Sanjeev Bhushan, Advocate has vehemently argued that there was no alternative remedy available to his client except filing a revision petition. This plea cannot be accepted. In case his client was aggrieved by the issuance of order dated 6.6.2001 she should have availed the remedy but before passing the orders dated 5.3.2001 by the Commissioner, Municipal Corporation. She has waited till the orders of demolition were passed by the Commissioner, Municipal Corporation. She has preferred appeal as provided under the Act. She has withdrawn the same we presume after the passing of the orders by the Principal Secretary (UD). Accordingly, in view of the observations made above and the definitive law laid down by their Lordships of the Hon’ble Supreme Court, as noted above, the writ petition is allowed. Annexure P-8 dated 17.1.2006 is quashed and aside. The consequences shall ensue. No costs. (R.B. Misra), Acting Chief Justice (Rajiv Sharma), Judge 17.9. 2009. *awasthi*