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Thyavanige Village Panchayat Vs. Divisional Commissioner, Bangalore Division - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petns. Nos. 278, 290, 173, 307, 316, 348, 295, 387, 112, 114, 219 and 305 of 1968
Judge
Reported in(1968)2MysLJ341
ActsConstitution of India - Articles 226, 233, 261, 266, 311 and 320(3); The Mysore Village Panchayats & Local Boards Act, 1959 - Sections 3 and 3(2); Mysore Village Panchayats Declaration of Villages (Procedure) Rules, 1959; Mines Act, 1952 - Sections 59
AppellantThyavanige Village Panchayat
RespondentDivisional Commissioner, Bangalore Division
Excerpt:
- code of civil procedure, 1908. order 18, rule 4(1) r/w section 151: [v.g. sabhahit, j] application under marking of xerox copy of agreement of sale rejection of earlier application filed under section 61(2) and 65(c) of evidence act and order 18 rule 14(1) r/w section 151 c.p.c., subsequent application for the same relief no ground made out about the change of circumstance order of the trial court rejecting application held, it is not disputed that earlier two i.as were filed seeking the same prayer and there is no ground made out about the change of circumstance. the order of the trial court is justified. however, it is open to the writ petitioner / plaintiff to contend regarding the finding given by the trial court about the right of the plaintiff to lead secondary evidence.....chandrashekhar, j.1. a division bench of the court has referred to this full bench the following two questions of law:(1). whether consultation with the taluk board provided under section 3(2) of the act (the mysore village panchayats & local boards act, 1959) is mandatory and the failure to consult renders the action taken invalid and inoperative. (2). whether action taken under section 3(2) of the act is not amenable to review under article 226 of the constitution of india?2. the reference of the first of these two questions was necessitated by the conflict between decisions of two division benches of this court. in k. venkategowda v. state of mysore, (1963) 1 mys lj 150 the bench consisting of somnath iyer and mr. iqbal hussain, jj., held that the notification impugned in that case,.....
Judgment:

Chandrashekhar, J.

1. A division Bench of the court has referred to this Full Bench the following two questions of law:

(1). Whether consultation with the Taluk Board provided under Section 3(2) of the Act (The Mysore Village Panchayats & Local Boards Act, 1959) is mandatory and the failure to consult renders the action taken invalid and inoperative.

(2). Whether action taken under Section 3(2) of the Act is not amenable to review under Article 226 of the Constitution of India?

2. The reference of the first of these two questions was necessitated by the conflict between decisions of two Division Benches of this Court. In K. Venkategowda v. State of Mysore, (1963) 1 Mys LJ 150 the Bench consisting of Somnath Iyer and Mr. Iqbal Hussain, JJ., held that the notification impugned in that case, made under Section 3(2) of the Mysore Village Panchayats and Local Boards Act, 1959 (hereinafter referred to as the Act), could not be sustained as it was not made after consultation with the Taluk Board. In Town Panchayat Committee, Konnur v. State of Mysore, (1966) 1 Mys LJ 444 another Bench consisting of Tukol and Bhimmiah, JJ. held that consultation with the Taluk Board under Section 3(2) of the Act is not mandatory and failure or absence of such consultation, does not invalidate such Notification. The earlier Bench decision does not appear to have been brought to the notice of the later Bench which has taken a contrary view.

3. It is convenient to set out the relevancy provisions of the Act and of the Mysore Village Panchayats Declaration of Villages (Procedure) Rules, 1959 (hereinafter referred to as the Rules). These Rules were made by the Government in exercise of the powers conferred by Section 210 read with Section 3 of the Act.

4. The word 'village' has been defined by Section 2(45) Of the Act as an area comprising a revenue villages, which is declared to be a village under the Act.

5. Section 3 of the Act reads:--

3. Declaration of village:--(1) whenever the Govt. after making such inquiry as may be prescribed, is satisfied, that any area comprising a revenue village or a group of revenue villages has a population of not less than one thousand and five hundred, but not more than ten thousand, it shall, by notification in the official gazette, declare such are to be a village;

Provided that the Government mat, for special reasons and by notification in the official gazette, declare any area comprising a revenue village having a population of less than one thousand and five hundred, or more than ten thousand, to be a village under this Section.

(2). The Government may, after consultation with the Taluk Board, by notification, at any time--

(a) include within any village or exclude from any village, any revenue village, or

(b) declare that any area shall ceases to be a village.

(3). A village having a population of not less than five thousand and an annual income estimated at not less than ten thousand rupees may be declared by the Government by Notification to be a Panchayat town.

Explanation :--For purposes of the Section 'population' means the population determined in such manner as may be prescribed.

Rule 4 (2) of the Rules reads:

(2) The group of revenue villages shall, as far as may be practicable, be made with due regard to geographical contiguity and facility of communications between the different revenue villages in the group.

Rule 5 reads:

The list prepared under Rule 3 along with such other particulars as the Government may require shall be sent to the Commissioner who shall with his remarks thereon forward them to the Government.

6. Rule 6 provides that on receipt of the lists and the particular under R. 5, the Government shall consider the suitability of the proposals made, and subject to such modifications as it deems fit, publish a notification specifying the areas comprising single revenue villages or group of revenue villages proposed to be declared as village under sub-section (1) of Section 3 and also the villages proposed to be declared as Panchayat Towns under Sub-section (3) of Section 3.

7. Sub-rule (2) of Rule 6 provides that a notification under the sub-rule (1) shall require all persons likely to be affected by the declaration, to send their objections or suggestions before the date to be specified in such notification.

8. Rule 7 provides that the Government shall consider the objections and suggestions, if any, received by it, and after ascertaining such further particulars from the Deputy Commissioner, as the Government may deem necessary and it deems fit, after giving an opportunity to be heard to any person who has sent his objections or suggestions, determine the revenue villages and group of revenue villages to be declared as villages under sub-section (1) of Section 3 and the villages to be declared as Panchayat Towns under sub-section (3) of Section 3.

9. Sub-section (2) of Section 3 of the Act confers on the Government a discretionary power to include or to exclude any revenue village from a Panchayat village or to declare that any area has ceased to be a village. But the question is if the Govt. chooses to exercise that power whether consultation with the Taluk Board before exercise of such power is mandatory or directory.

10. the distinction between the terms 'mandatory' and 'directory' was explained thus in Banwarilal Agarwala v. State of Bihar : (1961)IILLJ140SC :

'The non-observance of a mandatory provision involves the consequence of invalidity of the action purported to be done under that provision. While non-observance of a statutory provision which is directory does not entail the consequence of such invalidity whatever other consequences may occur.'

11. The Supreme Court has made it clear in Rani Driraj Kaur v. Raja Sri Amar Krishna Narain Singh : [1960]2SCR431 that a directory provision is not the same thing as a discretionary provision. A provision giving discretionary power leaves the donee of the power free to use or not to use it at his discretion. A directory provision, however, gives no discretionary power to do or not to do the thing directed. A directory provision is intended to be obeyed but a failure to obey it does not render a thing otherwise duly done a nullity.

12. As stated by the Supreme Court in Banawarilal's case : (1961)IILLJ140SC it has been recognised again and again by the courts that no general rule can be laid down for deciding whether any particular provision in a statute is mandatory or only directory. In each case the Court has to decide the legislative intent. Did the Legislature intend in making the statutory provision that non-observance of it would entail invalidity or did it not? To decide this we have to consider not only the actual words used but the scheme of the statute, the intended benefit to public or what is enjoined by the provisions, and the material danger to the public by the contravention of the same.

13. The use of the word 'shall' in a state as has been pointed by the Supreme Court in State of U. P. v. Manbodhan Lal Srivastava : (1958)IILLJ273SC , though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. In this context the Supreme Court quoted with approval the following passage in Crawford's Statutory Construction, Art. 261 at page 516 (1940 Edition):

'The question as to whether a statute is mandatory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and the intention of the legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design and the consequence which would follow from construing it the one way or the other...'

14. In Section 3(2) of the Act, the word 'shall' has not been used, nor has the word 'may' been used to govern the words, 'consultation with the Taluk Board': thought the word 'may' immediately precedes the words 'after the consultation with the Taluk Board', it seems to us that that word governs only clauses (a) and (b) of that sub-section and not the words 'after consultation with the Taluk Board'. Even though the word 'shall' has not been used with reference to the words 'after consultation with the Taluk Board,' it appears to us that the sub-section enjoins consultation with the Taluk Board before the powers conferred by that sub-section are exercised by the Government. It is not left to the discretion of the Government to consult the Taluk Board. But the question is still whether the requirement of consultation with the Taluk Board is mandatory or only directory.

15. In (1963) 1 Mys. LJ 150, while holding that non-consultation with the Taluk Board rendered the notification under Section 3(2) invalid, the Division Bench has not considered the question whether the requirement of Section 3(2) is mandatory or directory. In the later case (1966) I Mys LJ 444, this question has been considered and Tukol, J., who spoke for the Bench, said thus at p. 448:

'In support of his argument (that consultation with Taluk Board was only discretionary) he (the learned counsel appearing for respondents 3) has drawn our attention to the decision of the Supreme Court in U. R. Bhatt v. Union Bank of India : AIR1962SC1344 in which it has been laid down that Art. 320(3)(c) of the Constitution of India is not mandatory and that the absence of consultation with the Public Service Commission does not afford the Government servant a cause of action in a Court of Law. According to Art. 320(3)(c) the Public Service Commission 'shall be consulted on all disciplinary matters affecting a person serving in a civil capacity.........' The wording of S. 3(2) of the Panchayats Act is that the 'Government may, after consultation with the Taluk Board....'considering the wording of the sub-section, we are clear in our mind that consultation with the Taluk Board is not mandatory.......'

16. In U. R. Bhatt's case : AIR1962SC1344 the Supreme Court followed its earlier decision in : (1958)IILLJ273SC which sets out the reasons for holding that the requirement of consultation with the Public Service Commission under Art. 320(3)(c) is only directory and not mandatory. Sinha J., (as he then was) speaking for the Court in that earlier case said thus at page 917:

'Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Art. 320(3)(c) It does not either in express terms or by implication, provide that the result of such a non-compliance is to invalidate the proceedings ending with the final order of the Government.'

17. The Supreme Court relied on the decision of the Judicial Committee of the Privy Council in Montreal Street Railway Company v. Normandin, AIR 1917 PC 142, in which the question mooted was whether the omission to revise the jury lists as directed by the statute, had the effect of nullifying the verdict given by a jury. Holding that the irregularities in the due revision of the jury lists, will not ipso facto avoid the verdict of a jury. Their Lordships of the Privy Council observed:

'When the provisions of a statute relater to the performance of a public duty and the cased is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.'

18. The Supreme Court also referred the decision of the Federal Court in Biswanath Khemka v. The King Emperor in which the Federal Court held that non-compliance with the provisions of Section 256 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial powers or of enhanced magisterial powers would not render invalid or inoperative the appointment of Magistrates otherwise regularly and validly made.

19. Following the aforesaid decisions of the Privy Council and the Federal Court, the Supreme Court said that Art. 320(3)(c) is not in the nature of a rider or proviso to Art. 311 and does not confer any rights on a public servant, and that the absence of consultation or any irregularity in consultation cannot afford him a cause of action in a court of law.

20. In Chandra Mohan v. State of U. P. AIR 1966 SC 1987 the question that arose before the Supreme Court was whether the failure to consult the High Court under Art. 233 before making the appointment of District Judges, would render such appointment invalid. Subba Rao, C. J., who spoke for the court said at page 1990:

'....The Constitutional mandate is clear. The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the 'judicial service' or to the Bar, to be appointed as a District Judge. Therefore a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him......... These provisions (of the Constitution) indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated there..........'

21. In : (1961)IILLJ140SC , the question that arose for decision by the Supreme Court, was whether the requirement of consultation with the Mining Board before framing regulations under Section 59 of the Mines Act, 1952, was mandatory or only directory. Under Section 12 of the Mines Act the mining Board is constituted consisting or two persons representing owners of mines, two persons representing miners and three officers appointed by the Government. The Supreme Court gave the following reasons for holding that the consultation with the Mining Board was mandatory; the consultation is calculated to ensure that all aspects including the need for securing the safety and welfare of labour on one hand and the practicability of the proposed regulation and the likely expenses it may entail on the other hand. It is to the public benefit that the Mining Board should have an opportunity of examining the proposed regulations in the first place. Even though the law does not require concurrence of the Board and even where the opinion expressed by the Board is not accepted, the very fact that there has been such an examination by the Board, and a consequent re-examination by the defendant, is likely to minimise the risk to public welfare.

22. Thus it is seen that the Supreme Court has held that the requirement of consultation with the Public Service Commission under Art. 320(3)(c) of the Constitution is only directory while consultation with the High Court under Art. 233 of the Constitution and the requirement to consult the Mining Board under Section 59 of the Mines Act, are mandatory. The principle that can be gathered from these three decisions of the Supreme Court, appears to be that whether the requirement of consultation with another body is mandatory or directory depends upon several factors--the object of such consultation, and the status and the character of the body required to be consulted.

23. In regard to the consultation with the High Court under Art. 233 of the Constitution, the Supreme Court considered that the purpose of consultation with the High Court is so important that the duty of consulting the High Court should be regarded as being integrated with the power of the Government to make the appointment of Dist. Judges. In regard to consultation with the Mining Board, the composition of that Board (which consists of representatives of the persons affected by the intended regulations) and the public benefit likely to result from consultation with such an important body in complex problems of the mining industry, render such consultation mandatory. In regard to consultation with the Public Service Commission, the Supreme Court felt that having regard to the valuable safeguard given to a civil servant under the provisions of Art. 311 of the Constitution, failure to consult the Public Service Commission, before imposing a punishment merely amounts to an irregularity not affecting the validity of the exercise of the power by the Government to inflict a penalty on a civil servant.

24. The legal position as to when a provision is mandatory or directory, is succinctly summed up thus in Crawford's Statutory Construction in Art. 266 at page 529:

'As a general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them will be constructed as directory rather than mandatory, especially where such regulation pertains to uniformity, order and convenience and neither public nor private rights will be injured or impaired thereby.'

25. To determine to which of the two categories, consultation with the Taluk Board (required under Section 3(2) of the Act) falls, we have to ascertain the object of such consultation, the status and composition of that body which is required to be consulted.

26. In the Monograph, 'Delegated Legislation in India' prepared under the auspices of the India Law Institute, consultation before exercising the rule making power under a statute, has been divided into two broad categories (i) official consultation and (ii) consultation with statutory boards and advisory bodies. Examples of official consultation are consultation with the Reserve Bank before making rules under the Banking Companies Act, consultation with the Election Commission before making rules under the Representation of the People Act, and consultation with the High Court before making rules under Section 10 of the Merchants Seamen (Litigation) Act, 1946.

27. The object underlying the first category of consultation, is not so much to afford opportunity to affected interests to participate in rule-making as to place an obligation on the Government Department to seek assistance from some other agency in framing rules. The object underlying consultation with Statutory Boards and Advisory Committees which are generally composed of nominated officials and persons representing affected interests, appears to be to afford some opportunity to the affected interests to canvass their views and suggestions before the Government.

28. The learned counsel for the petitioners argued that under Section 3(2) of the Act the duty to consult the Taluk Board is so integrated with the exercise of the power under clauses (a) and (b) of that sub-section, that the power can be exercised only in consultation with the Taluk Board and not otherwise.

29. Rules have not been made in regard to the consultation under Section 3(2) of the Act. The authority required to be consulted under Section 3(2) is the Taluk Board and not the Panchayat of the village which may be affected by the proposed inclusion or exclusion of a revenue village or by the proposed cessation of any area being a village. The interest of the Taluk Board will not be affected by any such inclusion or exclusion of a revenue village from a Panchayat village nor by cessation of any Panchayat village. The object underlying consultation with the Taluk Board appears to be that the Government or its delegate, may inform itself or himself better by taking the assistance of the Taluk Board, the local authority which is likely to have knowledge and information of the local conditions about the village and in particular about the working of the Village Panchayats within its local jurisdiction.

30. Mr. B. S. Patil, learned counsel, whom we permitted to intervene and to address arguments on the questions before us, contended that alteration of the areas of a Panchayat Village by inclusion or exclusion of revenue villages, will affect the electoral rights of people and that the legislative intent in Section 3(2) is to ascertain the views of the people likely to be affected, though their elected body, the Taluk Board. We are unable to see how the right to vote, of the residents of any revenue village which is proposed to be included or excluded from a Panchayat Village will be affected by such inclusion or exclusion. Even after such inclusion or exclusion, those residents will have the right to vote through that right to vote may have to be exercised in an election to a different village Panchayat. If the legislative intent to ascertain the view of the people, the procedure provided in sub-section (1) would have been provided in sub-section (2) also.

31. Where consultation is required with an authority which may merely provide useful information, we think such consultation is generally of less importance than when consultation is required with an authority which represents interests whose public or private rights may be affected by the action proposed by the consulting authority. As the Taluk Board is not an authority representing the villages likely to be affected by any alteration of area under Section 3(2), we think the requirement of consultation with the Taluk Board under Section 3(2) is for the general guidance of the Government or its delegate, rather than for safeguarding the rights or interests affected. Further, the Government or the Divisional Commissioner (to whom the Government may delegate its powers under Section 3(2) will have other official channels besides the Taluk Boards, through which it or he can gather information or knowledge relevant to alteration of the area of a Panchayat Village.

32. In the circumstances, we think any invalidation of a notification under Section 3(2) on the ground only of absence of consultation with the Taluk Board, will create uncertainty, confusion and inconvenience among the Village Panchayats whose areas are purported to be altered by such notification. Such village Panchayats have no control over the Government or the Divisional Commissioner entrusted with the duty of altering the areas of such Panchayat Villages. Such invalidation of the action of the Government or the Divisional Commissioner will not promote the essential legislative aim that alteration of the areas of the Panchayat Villages should bring about more convenient grouping of revenue villages for the purpose of Panchayat administration. Hence the requirement of consultation with the Taluk Board which regulates the manner of exercise of the power under Section 3(2) by the Government or its delegate, should, in our opinion, be construed as directory rather than mandatory.

33. But the learned counsel for the petitioners contended that certain observations of the Supreme Court in Khambalia Municipality v. State of Gujarat : [1967]2SCR631 while considering analogous provisions of the Gujarat Panchayats Act, 1961, would show that the requirement of consultation under Section 3(2) is mandatory.

34. Section 9(2) of the Gujarat Panchayats Act, 1961 reads:

'(2) After consultation with the Taluka Panchayat, the District Panchayat and the Nagar or Gram Panchayat concerned (if already constituted) the State Govt. may, by like notification, at any time--

(a) include within, or exclude, from, any Nagar or Gram, any local area or otherwise alter the limits of any Nagar or Gram; or

(b) declare that any local area shall cease to be a Nagar or Gram;

and thereupon the local area shall be so included or excluded, or the limits of the Nagar or Gram so altered or, as the case may be, the local area shall cease to be a Nagar or Gram.'

There, the question that arose before the Supreme Court was whether Section 9(2) suffers from excessive delegation. The majority of the Bench that decided that case, took the view that there is no excessive delegation while the minority view was that that sub-section is invalid on account of the vice of excessive delegation. One of the reasons given by the majority for holding that there is no excessive delegation is that action under Section 9(2) can be taken only after consultation with the Taluka Panchayat, the District Panchayat concerned (if already constituted). According to the minority view, the only restriction on the power conferred by sub-section (2) of Section 9 is the necessity to consult the District Panchayat, the Taluka Panchayat, and the Nagar or the Gram Panchayat, as the case may be.

35. From the observations in the majority as well as the minority judgments of the Supreme Court, the learned counsel for the petitioners sought to infer that the requirement of consultation under Section 3(2) of the Act is mandatory.

36. In the first place, there is a material distinction between Section 3(2) of the Mysore Act and Section 9(2) of the Gujarat Act. While the former requires consultation only with the Taluk Board but not the village Panchayat or Panchayats which may be affected by the alteration of the area, the latter requires consultation not only with the Taluka Panchayat and the District Panchayat but also with the Nagar or Gram Panchayat which may be affected by alteration of the area.

37. The observation in the majority judgment that action under Section 9(2) can be taken only after consultation with the three categories of Panchayats, would in our opinion, only mean that the provision regarding consultation is not a discretionary one leaving it to the option of Government to consult or not to consult those bodies, but is intended to be obeyed. As stated by the Supreme Court in : [1960]2SCR431 even a directory provision is intended to be obeyed; though a failure to obey it does not render a thing done in disobedience of it a nullity. Hence the observation that action under Section 9(2) of the Gujarat Panchayats Act can be taken only after consultation with Panchayats, does not necessarily mean that that provision is mandatory and not directory.

38. Even the observation in the minority judgment that consultation with the three Panchayats is a restriction imposed on the exercise of the power under Section 9(2) of the Gujarat Panchayats Act does not mean that non-compliance with the requirement of such consultation which operates as a restriction, necessarily invalidates the thing done in disobedience of that restriction.

39. Thus the observations in both the majority and the minority judgments of the Supreme Court, or at any rate, the observations in the majority judgment in Khambalia Municipality's case, do not in any way detract from the conclusion we have reached that the requirement of consultation with the Taluk Board under Section 3(2) of the Act, is only directory and not mandatory.

40. Our answer to the first question referred is: Consultation with the Taluk Board provided under Section 3(2) of the Mysore Village Panchayats and Local Boards Act, 1959, is not mandatory but directory and failure to so consult does not render the action taken under Section 3(2) invalid or inoperative.

41. Regarding the second question referred to this Full Bench the learned Special Government Pleader who appeared for the State, fairly conceded that an action taken under Section 3(2) of the Act is not outside the purview of judicial review under Art. 226 of the Constitution. Even apart for any concession made by him, the question is well settled by several pronouncements of the Supreme Court.

42. In Dwarakanath v. Income Tax Officer : [1965]57ITR349(SC) Subba Rao, J., (as he then was) elucidated the scope of Art. 226 thus at pages 84 & 85:

'This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression 'nature', for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the Article itself.'

43. It is true that an action taken under Section 3(2) of the Act is not a quasi-judicial but an administrative act, and the Supreme Court has laid down in Radheshyam v. State of M. P. : [1959]1SCR1440 that it is well settled that certiorari will not lie correct the errors of a statutory body which is entrusted with purely administrative functions. (See also Province of Bombay v. Khushaldas : [1950]1SCR621 ). But an administrative act is also amenable to judicial review under Art. 226. Explaining the scope of judicial review of administrative acts, this is what Shelat, J. said in his separate judgment concurring with the majority decision in Barium Chemicals Ltd. v. Company Law Board : [1967]1SCR898 :

'Though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonesty or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts.'

44. Our answer to the second question is:

Action taken under Section 3(2) of the Mysore Village Panchayats and Local Boards Act, 1959 is amenable to judicial review under Article 226 of the Constitution of India.

(After receipt of the answers on the questions referred to the Full Bench the final order of the Division Bench consisting of Govinda Bhat and M. Sadanandaswamy JJ was delivered on 27-6-68 by:--

Govinda Bhat, J.

45. This matter was heard again to-day after the Full Bench has answered the two questions of law referred by us. The petitioner is the Thyavanige Village Panchayat in Channagiri Taluk, Shimoga District. The respondent is the Divisional Commissioner, Bangalore Division. The petitioner has challenged the Notifications issued by the respondent under Section 3(1) of the Mysore Village Panchayats and Local Boards Act, 1959, hereinafter called the Act. Though in the writ petition the petitioner has challenged several notifications their learned counsel restricted relief against Exhibits 'H' and 'J' only. The ground on which the said two notifications were challenged is that they contravened the provisions of Section 3 of the Act.

46. In order to appreciate the contention urged by the learned counsel for the petitioner, it is necessary to set out briefly the relevant facts in their chronological order. The object of the Act as stated in its preamble, among others was to consolidate and amend the laws relating to Panchayats. Chapter II of the Act, inter alia, provides for establishment and constitution of Panchayats. The petitioner-panchayat was constituted in the year 1960. The area of the Panchayat consisted of the following three revenue villages:

1. Thyavanige

2. Miyapura

3. Nalkundare.

The said three revenue villages were declared to be a 'village' as defined under the Act, by a Notification published in the official Gazette dated 25-1-1960, issued under sub-section (1) of Section 3 of the Act. The Panchayat was constituted on the basis of the said Notification for the village and elections were held. The respondent published a Notification in the Official Gazette dated 15-11-1967 in exercise of the powers conferred under sub-section (2) of Section 3 declaring that the petitioner village has ceased to be a village. That was followed by a Notification dated 18th November 1967 published in the Official Gazette dated 20-11-1967 proposing to re-group the said three revenue villages as follows:--

(a) Thyavanige Panchayat to consist of Thyavanige Village

(b) Nalkudare Panchayat to consist of (1) Nalkudare (2) Miyapura.

The petitioner has stated that objections were preferred by the Petitioner Panchayat and also the villagers concerned. After the said objections were received, the respondent published a Notification in the Official Gazette dated 14-12-1967 declaring the area comprised in the revenue villages of Thyavanige, Miyapura and Nalkudare to be 'village' as defined under the Act. That Notification was issued under sub-section (1) of Section 3 of the Act. Thereafter, the impugned Notifications Exhibits 'H' and 'J' dated 18-12-1967 were published in the Official Gazette dated 20-12-1967. By the Notification Exhibit 'H' the revenue village of Thyavanige was declared to be a 'village' and by the impugned Notification Exhibit 'J', the revenue villages of Miyapura and Nalkudare were declared to be a 'village'. The Notification published in the Official Gazette dated 14-12-1967 is dated 21-9-1967, and therefore anterior to the Notification published in the Official Gazette dated 15-11-1967 under sub-section (2) of Section 3 but was published on 14-12-1967 subsequent to the Notification under section 3(2) declaring that the village has ceased to be a 'village'. The terms 'Notification', 'revenue village' and 'village' have been defined in Section 2 as follows:--

Section 2(20). 'Notification means a notification published in the official gazette;

Section 2(35): 'revenue village' means any local area which is recognised by Govt. as a village for the purpose of revenue administration.

Explanation: (omitted as unnecessary)

Section 2(45): 'Village' means any area comprising a revenue village or group of revenue villages, which is declared to be a village under this Act.

Section 3 which is the material Section for the purpose of this Writ Petition, reads thus:--

'3. Declaration of village.--

(1) Whenever the Government, after making such inquiry as may be prescribed, is satisfied, that that area comprising a revenue village or a group of revenue villages has a population of not less than one thousand and five hundred but not more that ten thousand, it shall, by notification in the official gazette, declare such are to be a village;

Provided that the Government may, for special reasons and by notification in the official gazette, declare, any area comprising a revenue village or group of revenue villages having a population of less than one thousand and five hundred or more than ten thousand, to be a village under this Section.

(2) The Government may, after consultation with the Taluk Board, by notification at any time--

(a) include within any village or exclude from any village any revenue village, or

(b) declare that any area shall cease to be a village.

(3) (omitted as unnecessary).'

Sub-section (1) of Section 3 provides for the declaration of any area to be a 'village' as defined under the Act. Such a declaration can be made only by notification in the official gazette. Where an area is declared to be a village as defined, sub-section (2) of Section 3 empowers the Govt. which power has been delegated to the respondent to include within any village or exclude from any village any revenue village or declare that any area shall cease to be a village. The inclusion or exclusion of any revenue village from a village as defined or declaration that any area shall cease to be a village can be made only by a notification which means notification published in the Official Gazette.

47. By the Notification published in the official gazette dated 25-1-1960, the three revenue villages of Thyavanige, Miyapura and Nalkudare having been declared to be a village under the Act, any revenue village included in the petitioner village can be excluded therefrom only by notification under sub-section (2) of Section 3. The respondent has not excluded any revenue village from the petitioner-village. By the Notification published in the Official Gazette dated 15-11-1967 made in exercise of the power under sub-section (2) of section 3, the petitioner-village was declared to have ceased to be a 'village'. Thereafter, it was within the power of the respondent to declare any area to be a 'village' under sun-section (1) of Section 3. Proposals thereto were made by the Notification published in the Official Gazette dated 20-11-1967 proposing to constitute two villages. After the objections were received a Notification was issued in the Official Gazette dated 14-12-1967 declaring the aforesaid three revenue villages to be a 'village' under the Act. The result of the said Notification was that the status quo as before 15-11-1967 was restored. Subsequent to 14-12-1967, no notification was issued in respect of the petitioner village declaring it to have ceased to be a village. The action as contemplated in the impugned Notifications could not have been taken without declaring that the area has ceased to be a 'village' under sub-section (2) of section 3. The impugned Notification are clearly illegal and consequently, we quash the said Notifications Exhibits 'H' and 'J' in so far as the Petitioner-Panchayat is concerned.

48. No costs.

49. Order accordingly.


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