Case: B.R. Shankaranarayana &amp; Ors Vs. State Of Mysore &amp; Ors

2. By virtue of the provisions of the States Reorganisation Act, 1956, a new State known as the State of Mysore was formed comprising the territories of the then existing State of Mysore, certain districts in the then existing State of Bombay and Hyderabad, South Kanara district in the State of Madras except certain parts thereof and the then existing State of Coorg. The legislature of the new State of Mysore enacted the Mysore Village Offices Abolition Act, 1961 (Act XIV of 1961), hereinafter referred to as the Act. It received the assent of the President on July 8, 1961. Sub-section (3) of S. 1 authorised the State Government to fix a date for the commencement of the Act. By notification, dated January 9, 1963, the Government of Mysore notified that the said Act shall come into force with effect from February 1, 1963. Immediately after the Act was assented to by the President, the Governor of Mysore, in exercise of the powers vested in him under proviso to Art. 309 of the Constitution and other powers enabling him in that behalf, framed rules called The Mysore General Service (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961, in order to make recruitment to the posts of village accountants. The rules regulated the pay and other conditions of service of the village accountants3. By a notification issued on January 6, 1963, the Government of Mysore directed the Deputy Commissioner to appoint persons recruited under the rules and relieve the then holders of their offices and if the number of candidates fell short, to continue the existing holders in their post. There was a further direction that other village officers, viz., patels, thoties and talaries whose posts were also abolished under the Act should be continued in their present posts pending consideration by the Government of the question as to whether they should be continued4. The appellants have filed petitions under Art. 226 of the Constitution in the High Court of Mysore for the issue of writs of prohibition and certiorari declaring the impugned Act to be illegal, unconstitutional and void. Among the petitioners who are the village officers of the new State of Mysore are shanbhogs, patels and village karnams. In the writ petitions filed by them, they have impugned the validity of the Act. The grounds raised are common and the reliefs claimed are also identical. In the main the appellants attack the validity of the Act on the ground that it is a piece of colourable legislation. Para 9 of the affidavit filed in Writ Petition No. 393 of 1962, which is typical of the other writ petitions, states the ground in the following terms :" ....... though the object of the Act is to abolish the offices which are held hereditarily, in fact, what is being sought to be done is to extinguish the right of the present incumbents and thereafter to appoint persons to be recruited by the State Government. This is evident from the rules called Mysore General Services Rules (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment Rules of 1961) dated 29th November 1961. Thus, the posts are not being abolished but by a colourable exercise of power, the respondent is seeking to remove the present incumbents to enable it to appoint persons of his choice ..... for this reason also, the impugned Act and the Rules are illegal, ultra vires and unconstitutional as being a colourable exercise of power done with the mala fide intention of depriving persons like me of our fundamental rights under the Constitution."17. Now we may deal with Civil Appeal No. 190 of 1965. In the affidavit filed in support of Writ Petition No. 177 of 1963 out of which the above civil appeal arises it has been stated that the Madras Hereditary Village Offices Act No. III of 1895 does not in terms apply to the village offices of the district of South Kanara, that its principles have been observed in common practice by the revenue authorities, and that their appointments are governed by the Standing Orders of the Madras Board of Revenue which have not been repealed by the Act.

Court's reasoning:
9. On an examination of the material provisions of the impugned Act it is clear that its object and intendment is to abolish all the hereditary village offices, viz., patels, shanbhogs, etc., which were held hereditarily before the commencement of the Constitution and the emoluments appurtenant thereto11. In the territories forming part of the present State of Mysore, in the districts of South Kanara and Coorg the village offices were filled by persons belonging to a particular family. They had a preferential right to be appointed to those posts if they possessed the prescribed qualifications. In Raos case, AIR 1961 SC 564  , this Court held that a law which recognised the custom by which a preferential right to an office vested in the members of a particular family was violative of the fundamental right guaranteed by Art. 16. The Act, in abolishing all the hereditary village offices merely gave effect to the principle established by the said decisionWe are unable to accede to this contention13. As pointed out by this Court in Gajapati Narayan Deos case, AIR 1953 SC 375  , the whole doctrine of colourable legislation resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass the particular law, the motives which impel it to pass the law are really irrelevant. It is open to the Court to scrutinize the law to ascertain whether the legislature by device, purports to make a law which, though in form appears to be within its sphere, in effect and substance, reaches beyond it14. Beyond attempting the argument that the impugned Act is a piece of colourable legislation, learned Counsel for the appellant has not succeeded in substantiating his contention that the Act and the rules made thereunder are merely a device for removing the present incumbents from their office. The provisions of the Act and the rules made thereunder plainly provide for the abolition of hereditary village offices and make those offices stipendiary posts. The Act makes no secret of its intention to abolish the hereditary posts15. It is argued that even after abolition, the same posts are sought to be continued. It is no doubt true that the names of the offices have not been changed but there is a basic structural difference between the posts that have been abolished and the posts that have been created. The posts created by the new Act are stipendiary posts. They carry salaries according to the grades created by the rules. The incumbents are transferable and their service is pensionable. Different qualifications are prescribed for the new posts. From a consideration of the incidents attaching to the new posts it is clear that the old posts have been abolished and new posts have been created and that the whole complexion of the posts has been changed16. The result is that in our opinion the impugned Act cannot be held to be a piece of colourable legislation and as such invalid18. It is no doubt true that the Madras Village Offices Act, 1895, does not apply to South Kanara District, but the hereditary principle has been applied to village offices in the South Kanara District in accordance with the instructions contained in the Madras Revenue Boards standing orders and the impugned Act has abolished the principle of heredity in making appointments to the village offices.Learned Counsel for the appellant has argued, relying on the decision of the Privy Council in Musti Venkata Jagannadha v. Musti Veerabhadrayya, 41 Mad LJ 1: (AIR 1922 PC 96) that the karnam under the Madras Karnams Regulation is a personal appointee and that there is no absolute right of hereditary succession to that office and that the principle of heredity does not apply to that office19. It is not, therefore, correct to say that the principle of heredity does not apply to the appointments of shanbhog in the District of South Kanara. The fact that the Boards standing orders have not been repealed in their application to the district of South Kanara, which is now part of the State of Mysore, will not make any difference since the Boards standing orders recognise the principle of heredity underlying the Madras Hereditary Village Offices Act. The Schedule to the impugned Act specifically repealed the Madras Hereditary Village Offices Act and the Madras Karnams Regulation.