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Deputy Secretary to the Govt. of Assam, Panchayat and Community Dev. Department Vs. Moying Ch. Pegu and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberWrit Appeal No. 7 of 1981
Judge
ActsConstitution of India - Article 226; Assam Panchayat Raj Act, 1973 - Sections 134, 135 and 136
AppellantDeputy Secretary to the Govt. of Assam, Panchayat and Community Dev. Department
RespondentMoying Ch. Pegu and ors.
Appellant AdvocateAdv. General and Govt. Adv.
Respondent AdvocateP.G. Barua, M.K. Sarma, D. Goswami and H. Das, Advs.
DispositionAppeal allowed
Prior history
Lahiri, J.
1. This writ appeal is projected against the judgment and order D/-27-4-1981 passed in Civil Rule No. 93 of 1981.
2. Natural justice is undoubtedly a brooding omnipresence because of the strides made by the Courts in India during the last two decades but the Courts have always struck a balance between the expansion of the Rule and the empirical socio-economic needs, public interest and the authority of the legislature. The never ending process of evolution has taken note of various
Excerpt:
.....or in the event of the failure on the part on the mohkuma parishad to provide such services as the state government may, by notification declare and are essential services, the state government after giving the mohkuma parishad sufficient opportunity to show cause to the contrary, may by notification stating the reason for so doing, declare such mohkuma parishad to be incompetent, or in default, or to have exceeded or abused its power, as the case may be, supersede the mohkuma parishad for a period not exceeding six months at a time or dissolve the mohkuma parishad and order for a fresh constitution in the manner prescribed under this act. failure to perform the duties or abuse of power etc. such supersession or dissolution can be made only after giving the mah-kuma parishad 'sufficient..........has taken note of various checks and balances. in administrative law a prima faoie right to prior notice and opportunity to be heard may be held to be excluded by implication if any of the following facts is present, singly or in combination with another: (1) where the functions of the competent authority are held to be non-judicial; (2) where the authority in which is vested the power to decide is entrusted with a wide discretion; (3) where the action taken constitutes denial of a privilege as distinct from interference with a right; (4) where to impose an obligation to disclose relevant information to the party affected would be prejudicial to the public interest; (5) where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action,.....
Judgment:

Lahiri, J.

1. This writ appeal is projected against the judgment and order D/-27-4-1981 passed in Civil Rule No. 93 of 1981.

2. Natural justice is undoubtedly a brooding omnipresence because of the strides made by the Courts in India during the last two decades but the Courts have always struck a balance between the expansion of the Rule and the empirical socio-economic needs, public interest and the authority of the legislature. The never ending process of evolution has taken note of various checks and balances. In administrative law a prima faoie right to prior notice and opportunity to be heard may be held to be excluded by implication if any of the following facts is present, singly or in combination with another: (1) Where the functions of the competent authority are held to be non-judicial; (2) Where the authority in which is vested the power to decide is entrusted with a wide discretion; (3) Where the action taken constitutes denial of a privilege as distinct from interference with a right; (4) Where to impose an obligation to disclose relevant information to the party affected would be prejudicial to the public interest; (5) Where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially action of a preven-tive or remedical nature; (6) Where for any other reason it is impracticable to give prior notice or opportunity to be heard; (7) Where appropriate substitutes for prior notice and opportunity to be heard are available; (8) Where legislation expressly requires notice and hearing for certain purposes but imposes no procedural requirement for the purposes; (9) Where the matter in issue or the mone-tary value of the interest at stake is too trivial to justify an implication that notice or opportunity to be heard be afforded before action is taken, and (10) Where the power exercised is disciplinary (Vide Judicial Review of Administrative Action (4th Edn.) S. A. de Smith pp. 183-194). These are only illustrative cases. In Wade's Administrative Law, 4th Edition this aspect has been dealt with at page 451 onwards. Lord Denning M. R in R. v. Gaming Board for Great Britain, Ex p. Benaim & Khaida, (1970) 2 QB 417 (430) observed:

'It is not possible to lay down rigid rules

as to when the principles of natural justice

are to apply : nor as to their scope and ex

tent. Everything depends on the subject-

matter'

The application of natural justice rests on statutory implication and, therefore, it must always be in conformity with the scheme of the Act and the subject matter of the case. Urgent actions are needed to be taken to safeguard public health or safety, viz., to seize and destroy obnoxious fish or meat ex- posed for sale or to order the removal to hospital of a person suffering from infectious disease,-- in such cases the normal presumption must be that action may be taken without hearing. There are various urgent administrative matters where for obvious reasons no prior hearing can be granted, before taking action. There may be cases where giving of hearing may frustrate the very object of the action. In Pearlberg v. Varty, (1972) 1 WLR 534 (540) Lord Hail-sham L. C. said in the House of Lords--

'The doctrine of natural justice has come in for increasing consideration in recent years, and the Courts generally, and your Lordships' House in particular, have, I think rightly, advanced its frontiers considerably. But at the same time they have taken an increasingly sophisticated view of what it requires in individual cases.'

To preserve flexibility the Courts in India have frequently observed that the requirements of natural justice depend on the circumstances of each case, the nature of the inquiry, the statutory provisions under which the authority is acting, the subject matter to be dealt with. The gamut of statutory and factual context must be considered before applying the rule.

3, In this writ appeal we are concerned as to whether the legislature has by implication excluded the application of the principles of Audi Alteram Partem rule when a Mahkuma Parishad is dissolved on the ground that 'there is a dead-lock in the functioning' of the Parishad. It is also necessary to consider in the present appeal, whether Section 136 of the Assam Panchayat Raj Act, 1972 has been structured to meet the emergent situation where it is impracticable to give prior notice or opportunity to be heard, i. e. whether the obligation to give notice or opportunity of hearing was considered by the legislature to be obstructive to the taking of prompt action of a preventive or remedial nature to uphold 'public interest'. However, let us state the relevant facts and the findings reached by the learned single Judge.

4. The State Government dissolved the Dhemaji Mahkuma parishad in exercise of its power under Section 136 of 'the Act'. The reason for making the order was 'dead-lock in the functioning of the Mahkuma Parishad'. Petitioner No. 1 moved an application under Article 226 of the Constitution claiming that he was one of the Councillors of the dissolved Mahkuma Parisbad. Of course, he made the Mahkuma Parishad and the Chief Executive Councillor as co-petitioners 2 and 3, although they were nonexistent, being dissolved at the relevant time. Petitioner I claimed that his right of prior notice and hearing was denied by the State Government in making the order under Section 136 of 'the Act'. We find that only one of the Councillors was aggrieved by the impugned order and preferred the application. No other Councillor nor any person was aggrieved by the order of dissolution. The learned single Judge held that the State Government had statutory power to dissolve the Mahkuma Parishad under Section 136. The learned Judge also held that there was a dead-lock in the functioning of the Mahkuma Parishad. The impugned order was struck down as violative of Audi Alteram Partem rule, i. e. for not giving prior notice and hearing to the petitioners. Against the order of the learned single Judge the State has preferred this appeal. The contention of the learned Advocate General, Assam is that prior notice and hearing are provided in case of dissolution under Sections 134 and 135 of the Act, but the said rights are conspicuously absent in Section 136, where the power of dissolution has been conferred on the State Government in case of 'dead-lock' in the functioning of a Mahkuma Parishad. It has been contended that in view of such a situation the right of prior notice and hearing under Section 136 stands impliedly excluded. The learned Advocate General has relied on a Division Bench decision of this Court reported in AIR 1972 Gauhati 41, Bhuban Chandra Pradhani v. State of Assam. On the above authority the learned Advocate General contends that the question, that

action Under Section 136 does not require prior notice and hearing as the said provision has by necessary implication excluded the application of any or all the rules of principles of natural justice has been resolved. The learned Advocate General submits that the character of the power under Section 136 is to perform urgent duty in emergent situation, that is, 'dead-lock' in the functioning of the Mahkuma Parishad. So the rule is not applicable in an action Under Section 136 of the Act.

5. To appreciate the respective contentions of the parties it is necessary to scan the provisions of Sections 134, 135 and 136 of the Act. We extract only the relevant portions of the said sections:

'134. (1) If the State Government are of opinion that a Gaon Panchayat persistently makes default in the performance of the duties imposed upon it, by or under this Act or any other Act or abuses its power, they may after giving sufficient opportunity to show cause to the contrary, by an order in writing specifying the reason for so doing, supersede the Gaon Panchayat for such time not exceeding six months or dissolve the Gaon Panchayat.'

'135. (1) If in the opinion of the State Government the Mohkuma Parishad is not competent to perform, or persistently makes default in the performance of the duties imposed on the Mohkuma Parishad by or under this Act or otherwise by law, or exceeds or abuses its powers, or in the event of the failure on the part on the Mohkuma Parishad to provide such services as the State Government may, by notification declare and are essential services, the State Government after giving the Mohkuma Parishad sufficient opportunity to show cause to the contrary, may by notification stating the reason for so doing, declare such Mohkuma Parishad to be incompetent, or in default, or to have exceeded or abused its power, as the case may be, supersede the Mohkuma Parishad for a period not exceeding six months at a time or dissolve the Mohkuma Parishad and order for a fresh constitution in the manner prescribed under this Act.'

'136. If for any reason there is a deadlock in the functioning of a Gaon Panchayat or a Mohkuma Parishad, the State Government may dissolve the Gaon Panchayat op the Mohkuma Parishad, as the case may be, and may make any alternative arrangement, as may be deemed necessary for the working of the Gaon Panchayat or the Mabkuma Parisbad concerned till it is reconstituted in the manner prescribed under this Act.

6. Under Section 134 the State Government may dissolve or supersede a Gaon Panchayat. However, it must form an opinion that the Panchayat has persistently defaulted in performance of the duties imposed upon it or abused its power. Failure to perform the duties or abuse of power etc. by a Gaon Panchayat must be the ground for dissolution or supersession of a Gaon Panchayat. Therefore, the legislature expressly stated that on formation of an adverse opinion against a Gaon Panchayat the Government must give sufficient opportunity to show cause, The show cause must be in writing specifying the reasons for the proposed dissolution or supersession. Similarly a Mabkuma Parishad may be superseded under Section 135 on the grounds that it is not competent to perform Or persistently makes default in the performance of duties imposed on it or exceeds or abuses its power and so forth. Such supersession or dissolution can be made only after giving the Mah-kuma Parishad 'sufficient opportunity to show cause'. The provision also clearly pre-vides for giving sufficient opportunity to show cause. The rationale behind giving prior notice and bearing under Sections 134 and 135 is that positive imputations are made against the bodies and they are stigmatised for failure to function properly, abusing their power etc. Giving of prior notice and hearing are made statutory requirements as the dissolutions are made on account of certain wrongs, defaults and/or illegalities attributed to the bodies. If we turn to Section 136 we find that there is absolutely no provision for giving prior notice or bearing. The only ground for dissolution is 'when there is dead-lock in the functioning of the body. The term 'dead-lock' denotes the position in which it is impossible to proceed or act, a complete standstill, vide 'The shorter Oxford English Dictionary', 3rd Edn., Vol. I, p. 458. Therefore, we note the scope, object and contour of Section 136 -- the State Government is obligated to act in a grave and emergent situation -- the power is exercisable only in the extreme circumstance where the functioning of the local body standstill or reaches a position in which it is impossible for it to function as a body. The learned single Judge has held that there was a deadlock for which action was taken Under Section 136. We respectfully agreed with the view expressed. In case of a real dead-lock, as in the present case, we fail to fathom bow the question of prior notice and bearing can be visualised. We also fail to understand as to why even under such emergent circumstance, should the State Government serve notice and give hearing before making an order of dissolution. To do so is te frustrate the public- cause and public interest. If in reality there exists a dead-lock in a local body, in the general interest of the public, it should be dissolved forthwith to uphold 'public interest'. We are of the view that under such situation no prior notice or hearing can be conceived. The object of the scheme of the Act, the urgent character of the situation are eloquent to show that Audi Alteram Partem rule has been very rightly excluded by the legislature. In Bhuban Chandra Pradhani (AIR 1972 Gauhati 41) (supra) Goswami, C. J. speaking for the Court considered the provisions of Section 140-B of the Assam Panchayati Act, 1959, which are pan materia and almost word for word same with the provisions of Section 136 of 'the Act', and has observed that Audi Alteram Partem rule is not applicable in case of deadlock in the functioning of an Anchalik Panchayat. It was held That absence of provisions of opportunity to show cause did not invalidate the said provision. The relevant observations are (para 9):

'Although Mr. Das at one stage tried to argue but has finally abandoned his submissions that absence of provision of opportunity to show cause under Section 140-B itself is invalid being opposed to the rules of natural justice. Indeed, this argument could not be made in view of a recent decision of the Supreme Court in Union of India v. J. N. Sinha, AIR 1971 SC 40. The following observations in that decision are apposite:

'It is true that if a statutory prevision caa be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But, if on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the rules of principles of natural justice then the Court cannot ignore the mandate of the legislature or the statu-ory authority and read into the concerned provision the principles of natural justice.'

We respectfully agree with the view expressed in Bhuban Chandra (supra) and hold that Section 136 does net provide for any opportunity to show cause before making an order of dissolution under Section 136 of 'the Act'. As held in Union of India v. J. N. Singb (supra), it must be held that Section 136, by necessary implication, excluded the application of any or all the rules of principles of natural justice. We cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice.

7. Now, it will be seen from the provision of Sections 134, 135 and 136 that Audi Alte-ram Partem rule is applicable when the Government take actions u/ss. 134 and 135 whereas the exclusion of the rule is writ large in Section 136 of the Act. Therefore, the entitlement to notice and hearing is statutory rights in Sections 134 and 135 but there is no such legal right impressed in Section 136. In our opinion, the maxim 'expressio unique est exclusio alterius' (the express mention of one thing implies the exclusion of another) is applicable in interpreting Section 136 read with Sections 134 and 135. Where the legislation expressly required notice and hearing for taking actions under Sections 134 and 135 but imposed no such procedural requirement for taking action Under Section 136 it is to be presumed that in the latter action 'audi alteram partem' rule was excluded by necessary implication. But the rule of interpretation certainly requires close scrutiny and watch, it may be 'a valuable servant, but a dangerous master to follow' as the 'exclusion' is often the result of inadvertence or accident of its application causes a great inconsistency or injustice. However, it is not the result of inadvertence or accident because the section which was Section 140-B of the Assam Pancha-yat Act, 1959, repealed by 'the present Act', came up for interpretation in Bhuban Chandra Pradhani (AIR 1972 Gauhati 41) (supra) which held that the section which had excluded the application of the audi alteram partem rule was not invalid. Therefore, the legislature having had the knowledge of the controversy and the decision advisedly kept the provisions intact in the repealing Act of 1979. Section 136 applies only in case of dead-lock in the functioning of the bodies. No useful purpose could be served in giving notice and hearing where there is complete standstill in the functioning of the Mahkuma Parishad. The administrative action Under Section 136 is taken by the State Government in a situation where it finds that it is impossible for the body to proceed or act, or where there is complete standstill in the functioning. Urgent maladies call fop quick actions. We are of the opinion, on scanning the entire scheme of the Act and the subject matter that exclusion of audi alteram partem rule is designedly made to uphold the public cause and public interest. It does not stand scrutiny that when there is a dead-lock in the functioning of a public body having public duties to perform, the State Government ought to dilly dally with the matter, to do so is to frustrate the public interest and defeat public cause. The nature and quality of the situation calls for prompt action. As such we are constrained to hold that audi alteram partem rule is not applicable where exists a real dead-lock. Section 136 provides for a drastic action but it is designed to meet an emergent and extraordinary situation.

8. In S.L. Kapoor v. Jagmohan, AIR 1981 SC 136, an attempt was made to show that the legislation expressly required notice and hearing under Section 16 of the Act but it excluded such a right when the Municipal Committee was superseded under Section 238 of the Punjab Municipal Act. Their Lordships have considered the provision of Section 16 along with Section 238 and concluded that they do not operate in the same field. It has been held that Section 16 merely deals with disqualification of an individual member. It has nothing to do with 'the body'. Their Lordships, therefore, held that the question of exclusion by implication of audi alteram partem rule did not apply and Section 238 required prior notice and hearing. Further the second feature in S. L. Kapoor (supra) was that supersession of the committee could be made only when there was abuse of power, failure to perform duty and other imputations against the Committee. However, Section 136 of the Act can be invoked only when there is a dead-lock in the functioning of the body. There is no question of any stigma or imputation against a 'body or committee'. A dead-lock may be due to various factors and no stigma is attached to the members of a body or committee. Their Lordships have held that Section 238 of the Punjab Municipal Act requires prior notice and hearing because the supersession involved imputation and stigmatisation of the members of the committee. The third feature is that Section 136 is pari materia with Sections 134 and 135 of the Assam Act which require prior notice before supersession. Under these circumstances, we are unable to hold that the law laid down by the Supreme Court in S. L. Kapoor (supra) is an authority for the proposition to decide the question involved in the present case On a thorough consideration of the provi-sions of Sections 134 and 135, we have held that the legislation excluded prior notice and bearing by implication. We have also held that it was not an accidental omission. We have also considered the circumstances and the gamut of the statutory and factual contest and held that the right to prior notice and opportunity has been excluded by implication in Section 136 of 'the Act'. We have also taken note of the decision of this Court in Bhuban Chandra Pradhani (supra). In the result, we hold that the principle of S. L. Kapoor are not applicable in the facts and circumstances of the case. There is another interesting aspect in S. L. Kapoor (supra) which we cannol overlook. There, no relief was granted to the appellant because 'it may lead to confusion and chaos in the affairs of the municipality'. To avoid chaos and confusion the order was not quashed nor was the committee reinstated. Further, Section 238 of the Punjab Act was not a provision for taking prompt action in an urgent and extraordinary circumstance to uphold the public interest as we have in Section 136 of 'the Act'. In Swadeshi Cotton Mills (AIR 1981 SC 818) it was positively held that 'the takeover' of the mills by the Government under Section 18-AA of the Industries (Development and Regulation) Act was violative of the principles of natural justice. Yet their Lordships did not quash the order but directed the Govt. to give a full, fair and effective hearing to the aggrieved owner of the undertaking and to take such fresh decision and/or such remedial action as might be necessary, just, proper and in accordance with law. Considering the nature of the course of action of their Lordships it confusion (sic), passed the order because if the undertaking would have been returned to the owner and if after hearing the Government would have again passed an order of 'takeover' it would have created confusion and chaos. In our opinion, the principles of Swadeshi Cotton Mills are not applicable in the instant case. On interpretation of Section 18-AA their Lordships held that the section did not expressly exclude the appli-cation of 'audi alleram partem rule' at the pre-decisional stage. We have expressed the reason why we considered that the principles of the audi alteram partem rule was im-pliedly excluded. We are, therefore, of the view that the rules, enunciated in the decisions aforesaid are not applicable in the present case.

9. For the foregoing reasons we respectfully differ from the views expressed by the learned single Judge and set aside the Judgment and Order.

10. However, in all fairness Mr. A. M. Mazumdar, the learned Advocate General has given an undertaking that the State Government shall give petitioner No. 1 full, fair and effective hearing provided he makes a representation to the State Government We have been assured by the learned Advocate General that petitioner No. 1 shall be given full, fair and effective hearing and the Government shall dispose the representation within three months. Mr. D. Goswami for respondent-petitioner No. 1 (Sri Moying Chandra Pegu) submits that respondent No. 1 shall make necessary representation within 15 days. Accordingly, we direct the State Government to consider the representation of respondent No. 1, if so filed, and dispose the same within three months from today.

With the above observation the appeal is allowed. No costs.


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