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S. Varadarajulu and anr. Vs. the District Revenue Officer, West Godavari, Eluru and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1089 of 1971
Judge
Reported inAIR1972AP291
ActsAndhra Pradesh Municipalities Act, 1965 - Sections 46, 46(2) and 46(3); Andhra Pradesh District Collectors' Powers (Delegation) Act, 1961 - Sections 3
AppellantS. Varadarajulu and anr.
RespondentThe District Revenue Officer, West Godavari, Eluru and ors.
Appellant AdvocateP. Babul Reddy, Adv.
Respondent AdvocateA.S.N. Murthy, Govt. Pleader and ;I.V. Rangacharya, Adv.
Excerpt:
civil - delegation of powers - sections 46, 46 (2) and 46 (3) of andhra pradesh municipalities act, 1965 and section 3 of andhra pradesh district collectors' powers (delegation) act, 1961 - petitioner challenged notice of respondent calling for meeting to decide motion of no-confidence - petitioner contended that district collector (dc) personally collected notice from some municipal councilors regarding no-confidence against petitioner - dc not justified in directing respondent to hold meeting - held, dc alone had power to convene meeting under section 46 (3). - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of..........from the reasoning in that part of my judgment that the receipt of the notice would also be a power exercised by the district collector. it would therefore follow that the subsequent proceedings in respect of this notice of motion under section 46 would also have to be taken by the district collector.in this connection reference may be made t the decision of a bench of this court reported in re. a. suryanarayana, (1970), 2 andh wr 303. in that case the district collector had issued a notice under section 6-a of the essential commodities act to the owners of the goods seized to show cause why they should not be confiscated. it was held that the district revenue officer cannot make a further inquiry and pass an order confiscating the goods. there the learned public prosecutor.....
Judgment:
ORDER

1. Twenty for elected councilors of the Eluru Municipal Counsel presented a notice of motion expressing want of confidence in the Chairman of the Municipal Council, under Section 46 (2) of the Andhra Pradesh Municipalities Act, to the Collector West Godavary at Eluru in person on 2-2-1971. The District Collector received the notice personally and put up a note to the following effect: 'D. R. O./PA. please examine and put up urgently. This was presented to me by Sri. N. Subba Rao, Sri Srirama Prasad, Sri K. Ramachandra Rao and Sri F. E. Burder personally today.'

2. Thereafter a notice was issued by the District Revenue Officer Sri K. Satyanarayana in the following terms:

'Whereas a written notice of intention to move a motion expressing want of confidence in the present chairman of Eluru Municipal Council Sri Toota Lakshmi Surya Satyanarayana signed by 24 councilors, has been delivered to the District Collector, West Godavari by Sri N. Srihari Rao, Sri Koma Ramachandra Rao and Sri. F. E. Burder elected Municipal Councilors and whereas a meeting of the Municipal Council has to be convened for the consideration of such motion. notice is hereby given to all the elected councilors of the Eluru Municipal Council under Section 46 (3) of the Andhra Pradesh Municipalities Act. 1965 that a meeting of the Municipal Council, Eluru, will be held by the District Revenue Officer, West Godavari,. Eluru at the Municipal Office, Eluru at 11 a.m. on Saturday the 27th day of February 1971 for the purpose of considering the no-confidence motion referred to above.........'

3. It is to challenge this notice that the present writ petition has been filed by the Chairman and other Municipal Councilors.

4. The contention of the petitioners is as follows: Under S. 46 (2) of the A. P. Municipalities Act in the case of a special or selection grade Municipality, (to which category Eluru Municipality belongs) it is the District Collector, to whom the notice of intention to make a motion of non-confidence has to be delivered in person and it is the District Collector that is to convene the meeting for the consideration of the motion at the Municipal Office on the date appointed by him and it is he who has to preside over the meeting. The notice issued by the District Revenue Officer. instead of the District Collector is contrary to the provisions of Section 46 (2) of the A. P. Municipalities Act and is therefore invalid.

It is no doubt true that under the provisions of the Andhra Pradesh District Collector's Powers (Delegation) Act, 1961 referred to shortly hereafter as the Delegation Act the State Government may be notification in the Andhra Pradesh Gazette authorise any joint collector or any other officer of the Revenue Department, not below the rant of a Deputy Collector, to exercise all or any of the powers vested in the District Collector and may in like manner withdraw such authorisation.

5. It is first submitted that there is no valid notification in terms of Section 3, authorizing the District Revenue Officer to exercise the powers of the Collector under the Andhra Pradesh Municipalities Act. The second submission is that such a notification would enable the District Revenue Officer to exercise only the powers vested in the District Collector under the Andhra Pradesh Municipalities Act. The giving of a notice under Section 46 (3) of the Act is not a power within the meaning of Section 3 of the Act XXXII of 1961. which is delegatable under the provisions of the Act. Lastly it is submitted that by reason of the second proviso to Section 3. as the District Collector exercised his powers in respect of this particular case viz. by receiving the notice personally presented by some of the Municipal Councilors, the delegate viz. the District Revenue Officer has no authority to exercise the powers in respect of the same case. The notice therefore, should have been issued by the District Collector and not by the District Revenue Officer.

6. The notification under S. 3 of the Andhra Pradesh District Collectors Powers (Delegation) Act, 1961 was made on 22-1-1968 by (Sic) and under the notification the District Revenue Officers were authorised to exercise all the powers vested in the District Collectors under the laws mentioned in the Annexure. One of the enactments mentioned was the District Municipalities Act 1920 (At V of 1920). The Andhra Pradesh District Municipalities Act 1965 was not mentioned in the notification. Subsequently, however, another notification was issued amending the previous notification in the following manner:----

'In the annexure to the said notification I under Appendix II to G. O. Ms. No. 77 Revenue dated the 22nd January, 1968 as subsequently amended for item '4. The Andhra Pradesh District Municipalities Act, 1965 (Act No. V! of 1965)' the following item shall be substituted, namely. '4. The Andhra Pradesh Municipalities Act. 1965 (Andhra Pradesh Act No. 6 of 1965)'.

It is argued by Mr. Babul Reddy, the learned counsel for the petitioner, that the first notification mentioned the District Municipalities Act, 1920 and not the Andhra Pradesh District Municipalities Act of 1965. Though by the amendment the Andhra Pradesh Municipalities Act 1965 was substituted, the amendment stated that is should be substituted for the 'Andhra Pradesh District Municipalities Act 1965' occurring in the original notification. As however the Andhra Pradesh District Municipalities Act 1965 did not occur in the original notification but only the District Municipalities Act 1920. it was argued by Mr. Babul Reddy that the amendment has no effect whatsoever, and the original entry viz., the District Municipalities Act 1920 continued in the notification without an amendment.

This submission in my view has to be rejected. The expression used in the amendment is 'for item 4 the Andhra Pradesh District Municipalities Act. 1965, the following item shall be substituted.'. No doubt there is an error in using the expression 'the Andhra Pradesh District Municipalities Act 1965'., as the words that occurred in the previous notification were 'District Municipalities Act 1920'. But the word 'Item 4' makes it clear that what was substituted by the amendment was item 4 in the previous notification viz., the District Municipalities Act 1920. The words 'the Andhra Pradesh District Municipalities Act 1965' in the amendment next to the word 'item 4' first occurring is apparently in the nature of a clerical error. I am therefore of the view that in view of the amendment of the item 4 --- The Andhra Pradesh Municipalities Act 1965 became the subject-matter of notification under Section 3. In view of that amendment all the powers vested in the Collector under that Act became exercisable by the District Revenue Officers.

7. The next submission is that under the Delegation Act of 1961 read with the notification made under S. 3. the District Revenue Officer is the delegate only in respect of the powers vested in the Collector under the Municipalities Act. The issuing of a notice under Section 46 (3) is not a power within the meaning of the Act. It is argued that Section 46 must be read as a whole. Under that section the District Collector is the person to whom the motion of no-confidence has to be delivered in person by the elected councilors. Thereafter the District Collector is bound to convince a meeting and also bound to preside over such a meeting. If for any reason he is unable to preside, he is bound to adjoin the meeting. All these according to Mr. Babul Reddy are functions or duties and not powers vested in the Collector. On the language of Section 3 of the Delegation Act, the District Revenue Officer can only exercise the powers and not functions or duties.

I am unable to agree with this distinction. The expression 'powers' used in S. 3 has to be interpreted broadly. The meaning of the section is, to put it in ordinary language that the delegate is authorised to do all that the District Collector can do by or under the provisions of the particular Act which is the subject-matter of the Notification. In my view all the functions exercisable under Section 46 are 'powers' within the meaning of the Delegation Act. There is no distinction as far as this is concerned between what is described as a power or a function or a duty.

8. A somewhat similar argument was addressed in Mungoni v. Attorney General of Northern Rhodesia, 1960 AC 336. In that case their Lordships of the Privy Council had to consider Regulation 47 of the Emergency Powers Regulation, 1956, of Northern Rhodesia which stated that the Governor may deputy any person to exercise all or any of the powers conferred on the Governor by these Regulations. Regulation 16 (1) provided that whenever the Governor is satisfied that for the purpose of maintaining public order it is necessary to exercise control over any person, he may make an order directing that such person be detained.

It was argued that the satisfaction of the Governor that is necessary for the purpose of maintaining public order to exercise control over any person, was in the nature of a duty whereas the making of the order consequent upon such satisfaction was the exercise of a power. It was further argued that the first function which was in the nature of a duty cannot be delegated whereas the second function which was in the nature of a power would be delegated.

9. Dealing with this arguments Lord Denning delivering the opinion of the Privy Council observed:-

'The power and the duty under regulation 16 (1) are so interwoven that it is not possible to split the one from the other so as to put the duty on one person and the power in another. Whosoever exercises the powers, he must be who has to carry out the duty. It seems clear to their Lordships that, if the Governor has any authority at all to delegate his functions under Regulation 16 (1), he must be able to delegate both the power and duty together to one and the same person. He cannot delegate the power to another and keep the duty to himself. Even this did daunt Mr. Mallaiah. He said that if the power cannot be split from the duty, then it means that the Governor cannot delegate his functions under regulation 16 (1) at all: for the he cannot delegate his duty under it to anyone.

It seems to their Lordships that the arguments for the appellant, proceed on this fallacy: they assume that the duty under regulation 16 (1) is something separate and distinct from that the duty under regulation 16 (1) is something separate and distinct from the power therein contained. Their Lordships cannot accept this view. In their opinion regulation 16 (1) contains not so much a duty, but rather a power coupled with a duty. The power of the Governor to make a detention order can only be exercised when he is 'satisfied' that it is necessary. The requirements that he is to be satisfied thought in one sense a duty --- is nevertheless also a condition or limitation on the exercise of the power. And when regulation 47 authorises the Governor to delegate the power to any person, it authorises him to delegate to such person the fulfillment of all the conditions and limitations attaching to it, even though they be also duties.'

10. Thus in that case it was held that the function of being satisfied about the conditions necessary for making the order was delegated under Regulation 47. The position is much clearer in this case. The impugned order is a notice convening the meeting. In issuing the notice it cannot be doubted that the District Revenue Officer was exercising a power which was normally exercisable by the Collector, but which was delegated to him under the Delegation Act.

11. The third submission is that even assuming that the District Revenue Officer is authorised by the notification made under Section 3 to exercise the powers of the Collector vested in him under the Municipalities Act he is prevented from doing so in this case by reason of the second proviso to Section 3 as the Collector had initially exercised the power himself. The second proviso reads as follows:----

'Provided further that where in respect of any case, the District Collector exercises his powers, the Joint Collector section shall not exercise his powers in respect of the same case.'

12. It was argued that in this case relating to a motion of no-confidence against the Chairman and the convening of a meeting by the District Collector, the District Collector had exercised his power viz. of receiving the notice personally presented by some of the Municipal Councilors. Thereafter by reason of this proviso he alone should exercise all the powers in the case viz., powers referred to in Section 46 (3) and other sub-sections. I agree with this contention. The terms of the proviso are clear. The object of the proviso is to prevent confusion in the exercise of the powers. Once a power has been exercised by a particular authority in any particular case he alone should continue to exercise it in that case.

It was argued by Sri. Rangacharya on behalf of respondents 3 to 6 that the receipt of a notice by the Collector cannot be said to be the exercise of a power by the District Collector. All that the District Collector did was when the Municipal Councilors appeared before him and presented the notice of the motion, he received it and put up a note stating that the District Revenue Officer should thereafter take the necessary action., There was therefore no exercise of power on his part. In view of what I have stated in connection with the second point on the meaning and the scope of the expression 'exercise of power' in Section 3, I am unable to agree with this contention of Sri Rangacharya. It would follow from the reasoning in that part of my judgment that the receipt of the notice would also be a power exercised by the District Collector. It would therefore follow that the subsequent proceedings in respect of this notice of motion under Section 46 would also have to be taken by the District Collector.

In this connection reference may be made t the decision of a Bench of this Court reported in re. A. Suryanarayana, (1970), 2 Andh WR 303. In that case the District Collector had issued a notice under Section 6-A of the Essential Commodities Act to the owners of the goods seized to show cause why they should not be confiscated. It was held that the District Revenue Officer cannot make a further inquiry and pass an order confiscating the goods. There the learned Public Prosecutor contended that what was issued by the District Collector was only a formal notice. it was observe that the main purpose of the proviso was that there should not be a conflict in exercise of the powers in a single case and when one of the persons either the Collector or the person to whom the powers are delegated, initiates the proceedings, he must continue it and pass final orders in the matter. It is true that in this case the first act done by the Collector was only the receipt of a notice of motion whereas in the case referred to above the Collector had issued a notice. This circumstances, however, does not make any difference in principle. If the receipt of notice is also held to be the exercise of a power then it would follow that the subsequent proceedings should also be conducted by the Collector and not by the delegate.

13. In view of this conclusion the writ petition has to be allowed. The District Collector is directed to convene a meeting in pursuance of the notice of no-confidence motion received by him. Under Section 46 (3) the meeting has to be convened within 30 days from the date on which the notice under sub-section (2) was delivered to him. Mr. Babul Reddy however states on behalf of his client that the petitioner will not insist upon this condition and that the meeting may be convened by the District Collector even though it would be more than 30 days and that the petitioner would waive the condition required under that section. The notice of the District Revenue Officer calling for a meeting is hereby quashed and the District Collector is directed to convene a meeting to be held as expeditiously as possible in terms of Section 46 (3).

14. In view of the fact that the petitioner has failed in two of his three contentions, the petitioner will not be entitled to costs. Advocate's fee Rs. 100/-.

15. Petition allowed.


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