Case: Shr1 Radeshyam Khare &amp; Another Vs. The State Of Madhya Pradesh &amp; Others

1. There are two appellants in this appeal. The second appellant is the Municipal Committee of Dhamtari constituted under the C. P. and Berar Municipalities Act, 1922 (Act II of 1922) and the first appellant is its President having been elected as such on July 10, 1956. He assumed charge of his office as President on July 27, 1956. It may be mentioned that he was returned as a Congress candidate but has since been expelled from that party for having contested the last general election as an independent candidate against the Congress candidate2. It appears that there are two factions in the Municipal Committee. The first appellant alleges that one Dhurmal Daga, a member of the committee belonging to the Congress party was on August 7, 1956 detected importing within the municipal limits certain cloth without paying the octroi duty Dhurmal Daga, on the other hand, alleged that the first appellant was guilty of grave mismanagement of the affairs of the Municipal Committee and went on hunger strike for securing the appointment of a committee to enquire into the misconduct of the first appellant. Copies of the leaflets containing the demands and charges which are said to have been widely distributed are annexures I and II to the present petition. It appears that several persons and firms also preferred charges against the first appellant, the President of the Municipal Committee. The Collector Raipur personally intervened and persuaded the said Dhurmal Daga to abandon the fast on an assurance that he would look into the matter. The Collector deputed one Shri N. R. Rana the Additional Deputy Collector to enquire into the complaints of maladministration of the affairs of the Municipal Committee. By a Memorandum No. K/J N. P. Dhamtari dated August 24, 1956 the said N. R. Rana called upon the first appellant as the President of the second appellant to give detailed explanation of each complaint, a list of which was enclosed therewith. A copy of that memorandum along with its 22 enclosures is annexed to the petition and marked III. Annexures IV and V to the petition are copies of the detailed report on the objections and the reply to the charges made against the Municipal Committee submitted from the office of the Municipal Committee by the first appellant as the President of the Municipal Committee. The Additional Deputy Collector thereafter held the enquiry. The High Court states that it had "gone through the materials on which the State Government based its action on enquiry into the charges levelled against the Municipal Committee" and that the records of the enquiry showed that "on some occasions the petitioner was present during the enquiry". There is no suggestion that the appellants wanted an opportunity to adduce any evidence or were prevented from doing so or that they were in any way hampered in their defence. Presumably the Additional Deputy Collector had made a report which in due course must have been forwarded to the State Government3. On November 18, 1957 a notification was published in the Official Gazette whereby the State Government, in exercise of the powers conferred on it by S. 53-A of the C.P. and Berar Mnnicipalities Act, 1922 appointed one Shri B. P. Join, the second respondent before us, as the Executive Officer of the Municipal Committee, Dhamtari for a period of 18 months with certain powers as therein mentioned. A copy of that notification has been annexed to the petition and marked VIII but as the major part of the arguments canvassed before us turns on the contents of that notification the same is reproduced below in extenso :"Dated, Bhopal, the 18th November, 1957 No. 9262/11538-U-XVIII - Whereas it appears to the State Government that the Municipal Committee, Dhamtari, has proved itself incompetent to perform the duties imposed on it by or under the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), inasmuch as it(a) granted grain and building advances to the employees without prior sanction and no efforts were made for their recovery(b) showed carelessness in cases of embezzlement of the employees and did not report such cases to Government,(c) failed to control the President who issued orders in cases in which he had no authority,(d) spent thousands of rupees on sanitation and other works although there was no provision in the budget,(e) allowed unconcerned persons to interfere in its working,(f) showed partiality in the appointments and dismissals of the employees, further such appointments and dismissals were made against rules,(g) delayed the constitution of the committee and the framing of budget,(h) misused the trucks of the municipality,(i) failed to recover the lease money,(j) shown partiality in the issue of transit passes to certain traders, further excess octroi duty was charged on, certain articles and in certain cases where octroi duty is not leviable it was levied just to harass the people,(k) distributed municipal manure to certain persons without any charge, similarly distributed the manure free of cost and used the truck of the municipality for this purpose,(l) failed to control its president who spent the money of the Municipal Committee without any authority,(m) spent huge amount on the maintenance of the roads and drainage but their condition has remained unsatisfactory,(n) failed to give copies of the documents as allowed under rules, also failed to allow its members to inspect the records as is permissible under ruler,(o) failed to invite tenders of purchase of articles,And whereas, the State Government considers that a general improvement in the administration of the Municipality is likely to be secured by the appointment of a servant of the Government as Executive Officer of the CommitteeNow, therefore, in exercise of the powers conferred by S. 53-A of the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), the State Government are pleased to appoint Shri B. P. Jain, Deputy Collector, as Executive Officer of the Municipal Committee, Dhamtari, for a period of eighteen months from the date of his taking over charge and with reference to sub-s. (3) thereof are further pleased to direct that the Executive Officer shall exercise and perform the following powers and duties of the Committee to the exclusion of the Committee, President, Vice-President or Secretary, under the provisions of the Central Provinces and Berar Municipalities Act. 1922(II of 1922), namely :Chapter III. Appointment of Officers and servants - Sections 25, 26,and 28Chapter IV. Procedure in Committee meeting - Section 31Chapter V. Property, contract and liabilities - Sections 37 to 45Chapter VI. Duties of Committee -Sections 50 and 51Chapter VIII. The municipal fund - wholeChapter IX. Imposition, assessment and collection of taxes - wholeChapter X. Municipal Budgets and accounts - wholeChapter XI. Powers to regulate streets and buildings - Sections 90 to 94, 96, 98, 99, 103 and l04Chapter XII. Powers to prevent disease and public nuisance - Sections l17, l18(1), l19 and 132Chapter XVIII. Offences, practice and procedure - Sections 218-223Chapter XIX. Special provisions for recovery of taxes - wholeHindi (By order of the Governor of Madhya Pradesh)S. S. Joshi,4. On December 21, 1957, the two appellants before us presented before the Madhya Pradesh High Court the writ petition out of which the present appeal has arisen and on January 11, 1958, obtained an order staying the operation of the order of appointment of the Executive Officer. The writ petition was dismissed on February 20, 1958. There was a Letters Patent Appeal which was dismissed in limine on February 21,1958. The application for certificate under Articles 132 and 133 was refused on March 21, 1958. The present appellants applied for and on April 1, 1958 obtained from this Court special leave to appeal from the judgment of the Madhya Pradesh High Court. The interim stay order made by this Court was eventually vacated on May 13, 1958. The appeal has now come up before us for final disposal.

Reasoning:
There was a charge of mala fide made against the State Government founded on the fact that the first appellants leaving the Congress party had resulted in ill-will towards the first appellant of that party which was the ruling party in the State Government, but as that charge has not been pressed before us nothing further need be said about it. I now proceed to deal with the three points formulated above by learned counsel for the appellants6. Re, (i) and (ii) : These two points are correlated and may be conveniently dealt with together. The argument in support of them is developed in two ways. In the first place it is said that the grounds set forth in the impugned notification clearly indicate that in substance and in reality it has been issued rather under S. 57 of the Act than under S. 53-AI am not persuaded to uphold this argument7. In the first place it has to be remembered that the sections under consideration only confer certain powers on the State Government but that the latter is not bound to take any action under either of them. In the next place it should be noted that the two sections differ materially in their scope and effect. Under S. 53-A the State Government may only appoint a servant of the Government as the Executive Officer of the committee and may determine, from time to time which powers and duties and functions of the committee, its president, vice-president or secretary shall be exercised and performed by such officer and indicate whether they should be exercised and performed in addition to, or to the exclusion of, their exercise and performance by the said committee, president, vice-president or secretary. The wording of S. 53-A makes it quite clear that the action that may be taken thereunder is to be effective for a temporary duration not exceeding 18 months and the purpose of taking such action is to ensure the proper performance and discharge of only certain powers, duties and functions under the Act. The section does not, in terms, affect, either legally or factually, the existence of the committee, its president, vice-president or the secretary. Section 57, however, authorises the State Government, in the circumstances mentioned in the opening part of that section, to dissolve the committee itself and order a fresh election to take place so that the committee as a legal entity ceases to exist and all the sitting members of the committee become functi officio. If after such fresh election the same situation prevails, then that section further authorises the State Government to declare the committee to be incompetent or in default or to have exceeded or abused its power as the case may be and to supersede it for such period (not limited by the section) as may be specified in the order. The effect of an order made under S. 57 is, therefore, extremely drastic and puts an end to the very existence of the committee itself and, in view of the grave nature of the consequences that will ensue, the legislature presumably thought that some protection should be given to the committee before such a drastic action was taken and accordingly it provided, by sub-s. (5) of that section, that no order should be passed until reasonable opportunity had been given to the committee to furnish an explanation a provision which clearly indicates that action under S. 57 can only be taken after hearing and considering all the explanations furnished by or on behalf of the committee. The legislature did not think fit to provide a similar safeguard in S. 53-A presumably because the order under the last mentioned section was of a temporary duration, was not very drastic and did not threaten the very existence of the committee. A cursory reading of the two sections will also indicate that the conditions precedent to the exercise of the powers under both sections overlap to some extent; namely, that action can be taken under both if the committee "is not competent to perform the duties imposed on it.... ..".To the extent that the requirements of the two sections overlap the State Government has the option of taking steps under one section or the other according to its own assessment of the exigencies of the situation. The position, therefore, is that if a committee is not competent to perform the duties imposed on it the State Government has to make up its mind as to whether it should take any action at all and, if it thinks that action should be taken, then it has further to decide for itself as to which of the two sections it would act under. If the State Government considers that the incompetency does not run to a grave extent and the exigencies of the situation may be adequately met by appointing an Executive Officer for a short period not exceeding 18 months with certain powers to be exercised by him, either in addition to or in exclusion of their exercise by the committee, the president, vice-president or the secretary, the State Government may properly take action under S. 53-A. On the other hand if the State Government considers, having regard to all the circumstances of the case, that the incompetency is much too grave to permit the committee, its president, vice-president or the secretary to function at all, it may take action under S. 57 and dissolve the committee and direct fresh election to take place. In other words incompetency on the part of the committee gives to the State Government an option to apply one of two remedies under the Act, if, that is to say, it considers it necessary to take action at allTaking the position to be as contended by learned counsel for the appellants the position was that, as a result of the enquiry, the State Government found two things against the appellant committee, namely, (i) that it was guilty of incompetency an (ii) that it was also guilty of certain abuses of power. I have already stated that the State Government was not obliged to take any action at all either under S. 53-A or under S. 57. If the State Government considered that it was necessary to take action, it was entirely for the State Government to consider whether it would take action for incompetency or for abuse of power. In the present case the State Government might have thought that the abuse of power so found was not of a very grave nature but evidenced only incompetency. Surely a committee which abused its power might also have been reasonably regarded as "incompetent to perform the duties imposed on it." That apart, supposing the committee was guilty of incompetency as well as of some abuses, what was there to prevent the State Government, as a matter of policy, to take action for incompetency under S. 53-A? The mere inclusion of the findings of abuse of power in the catalogue of the Committees misdeeds does not obliterate the findings on incompetency. I see nothing wrong in the State Government telling the committee: "You have been guilty of incompetency as well as of abuse of power; but I shall not, just at this moment, take drastic action of dissolving you outright, but shall be content to take action and appoint an Executive Officer for 18 months and confer some power on him under S. 53-A". In my judgment the State Government was well within its rights, in exercise of its option, to take action, under S. 53-A as it has in terms purported to do.To say that because some of the findings amount to abuse of power the State Government must act under S. 57 is to deprive it of its discretion which the Act undoubtedly confers on it. In my view the fact that the impugned notification records, apart from the findings of incompetency, certain findings of abuse of power, does not lead to the conclusion, as contended for the appellants, that the State Government had taken action under S. 57 and not under S. 53-A although, in terms, it says it acted under the last mentioned sectionIn the first place S. 57 does not contemplate the appointment of any executive Officer or the conferment of any power on him, while such appointment and conferment of power is directly contemplated by S. 53-A. In the second place the legal existence of the municipal committee and the status of its members and its president, vice-president or the secretary have not been impaired at all. In the eye of the law the municipal committee still exists and along with it the members of the committee, the president, vice-president and the secretary still hold their respective offices. These features clearly militate against the suggestion that action has been taken under S. 57. Learned counsel says that we must look beyond mere form and get to the substance of the matter. There can be no doubt that most of the important powers have been taken away from the committee, its president, vice-president and the secretary, but that may will be due to the degree of gravity of the incompetency found or inferred from the other findings. Further a cursory perusal of the Act and of the notification will show that various other powers and duties have not been taken away from the committee or conferred on the Executive Officer. Thus the powers of the committee under Ss. 128, 130, 131, 133 to 141 and 144 145 and 147 to 149 are still vested in and are exercisable by the committee. Likewise the powers under Ss. 120, 121, 122, 123 to 127, 129, 150, 152 to 160 to 162, 163, 163A and 168 are still vested in and exercisable by the president. These powers that are still left with the committee or the president can hardly or with propriety be described as mere husks. It should not be overlooked that the suggestion that the real power has been taken away leaving only a semblance of it, is really an argument in aid of a charge of mala fides, but, as here-in-before stated, the charge of mala fides or fraud on the part of the State Government has not been persisted in or pressed before us. In my judgment, therefore, there is no warrant for contending that the impugned notification, judged by its effect, must be regarded as having been made under S. 57 of the Act. In this view of the matter the argument of invalidity of the action founded on non-compliance with the requirements of sub-s. (5) of S. 57 does not arise for consideration at allThe law is now well settled that a writ of certiorari will lie to control such a statutory body if it purports to act without jurisdiction or in excess of it or in violation of the principles of natural justice; or commits any error apparent on the face of the records, provided that, on a true construction of the statute creating such body, it can be said to be a quasi-judicial body entrusted with quasi-judicial functions. It is equally well settled that certiorari will not lie to correct the errors of a statutory body which is entrusted with purely administrative functionsIt may make an order under the section or it may not according as it thinks fit. But in case the State Government chooses to act under the section, it can only do so if the conditions therein laid down are fulfilled. A cursory reading of S. 53- A will show that there are two pre-requisites to be satisfied before the State Government can take action under S. 53-A, namely, (1) that the municipal committee is not competent to perform the duties imposed on it and (2) that the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the Executive Officer of the committee. When both these conditions are fulfilled, then and then only may the State Government take action and make an order under S. 53-A. Of the two conditions the second one, by the very language in which it is expressed, is left entirely a matter for the State Government to consider, for it depends entirely on the view of its own duty and responsibility that the State Government may take on a consideration of the situation arising before it. In other words, the statute has left that matter to the subjective determination of the State Government. The first requisite, however, is an objective fact, namely, whether the committee is or is not competent to perform the duties imposed on it. The determination of that fact, it is pointed out, has not been left to the subjective determination by the State Government. Learned counsel for the appellants urges that if it were intended to leave the determination of this fact of incompetency also to the subjective opinion of the State Government, the section would have been framed otherwise. It would have said something like this: "If the State Government considers that a committee is not competent to perform the duties . . . . . and that the general improvement in the administration of the municipalities is likely to be secured by .. . ...". This the Legislature has not done and has, thus, clearly evinced an intention not to leave it to the ipse dixit of State Government. Section 53-A, it is pointed out, differs materially in this respect from S. 3 of the Bombay Land Requisition Ordinance (V of 1947) which was considered by this Court in Kusaldas Advanis case (AIR 1950 SC 222  ). That section of the Bombay Ordinance opened with the words: "If in the opinion of the Provincial Government. . .. . ... ." which were taken as indicative of the Legislatures intention to leave the determination of the existence of all the conditions precedent entirely to the subjective opinion of the Provincial Government so as to make the action a purely administrative one11a. I now proceed to apply the principles discussed above to the facts of the present case. The simple fact that the incompetency of the committee goes to the root of the jurisdiction of the State Government to exercise its power under S. 53-A does not require that that fact must be determined judiciallyThere need not be any express provision that the State Government must act judicially. It will be sufficient if this duty may be implied from the provisions of the statute. The mere fact that a question of fact has to be determined as a preliminary condition before action can be taken under the statute by itself does not carry that implication. There must be some indication in the statute as to the manner or made in which the preliminary fact is to be determined. I find nothing in S. 53-A which in terms imposes any duty on the State Government to act judicially.No form of procedure is laid down or even referred to from which such a duty could be inferred. On the contrary, one finds a significant omission of any provision like that embodied in sub-s. (5) of S. 57 which requires that no order under that section shall be passed until reasonable opportunity has been given to the committee to furnish an explanation.It is also material to note that whereas an order under S. 57 is of a permanent character the one to be made under S. 53-A is to be of a limited duration, i.e., for such period not exceeding 18 months as may be specified in such order. Further, S. 53-A contemplates swift action and a judicial hearing may easily frustrate the very purpose contemplated by S. 53-A, for a judicial act will be subject to the powers of superintendence of the superior courts and the operation of the order under S. 53-A may be postponed, as it has been done in this very case, by taking the matter from court to court until it is set at rest by this Court. In this connection reference may also be made to S. 25-A of the Act which authorises the State Government to require the committee to appoint, inter alia, a Chief Executive Officer. I such committee fails to comply with the requisition within the period specified, the State Government may, under sub-s. (3), if it thinks fit, appoint such officer and fix his pay and allowance. Sub-section (4) authorises the State Government to require the committee to delegate to the officer so appointed such powers, duties and functions o the committee, its president, vice- president or the secretary under this Act or any rule or bye-law made thereunder as may be specified in such requisition and if the committee fails to comply with such requisition within a reasonable time, the State Government may determine the powers, duties and functions which shall be exercised and performed by such officer in addition to or to the exclusion of their exercise or performance by committee, its president, vice-president or secretary. Nobody will say that the State Government must exercise the powers under S. 25-A after holding any judicial enquiry. The only difference in the language of S. 25-A and S. 53-A both of which were inserted in the Act in 1947 is that action can be taken under S. 53-A only when the committee is incompetent to perform the duties imposed on it - a fact the determination of which is not in so many words left to the subjective opinion of the State Government, whereas action can be taken under S. 25-A on the satisfaction of the State Government as to certain facts which is, in terms, left to the subjective determination of the State Government. If, as I have said, the determination of a jurisdictional fact is not by itself sufficient to indicate that, it has to be done judicially, there is nothing else in S. 53-A or in any other section of the Act which will lead to the conclusion that the State Government must act judiciallyThe fact that action could be taken under that statute on affidavits was construed as a clear indication that the Bishop had to arrive at a decision as to the negligence of the Vicar on hearing evidence adduced before it by affidavit which led to the next conclusion that the Vicar must be given an opportunity of being heard and of adducing evidence in his own defence.From this circumstance it was inferred that even when the Bishop acted on his knowledge of fact he must also proceed judicially, for the two modes of procedure were treated on the same footing by the section itself. As I have said, there is nothing in S. 53-A or any other section which may lead us to infer a duty to proceed judicially as was done in that case. On the contrary there are indications leading to a different conclusion13. I have already recounted the events and proceedings that preceded the actual passing of the order under S. 53-A. If the action taken under that section is to be regarded as an administrative action, as I hold it should be, then I have no doubt that the appellants have had more than fair play. It is said that the State Government did not hold any enquiry before making the order and that, therefore, it cannot be said that the appellants had an opportunity to defend themselves against an order of this kind. I do not consider that there is any substance in this contention. If the State Government wanted to hold any enquiry it would do so through some of its officers. who would be more appropriate and competent to hold the enquiry except the officers on the spot? The Additional Deputy Collector is obviously the person to whom the duty of enquiry could properly be entrusted. All the charges levelled against the appellants were forwarded to them, and they submitted explanation. The first appellant, who is the President, personally attended many of the sittings. There is no suggestion that they had been prevented from adducing evidence in their own defence. The enquiry was held into what had been alleged against their conduct. It was surely not a purposeless enquiry. As a result of the enquiry certain findings were arrived at which were accepted by the State Government and an order was made under S. 53-A. I do not see what grievance the appellants can possibly have. In my judgment there has been no remissness on the part of the State Government.