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N.V. Subba Rao and ors. Vs. the Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1420 of 1964
Judge
Reported inAIR1968AP98
ActsHyderabad Municipal Corporation Act, 1956 - Sections 679(1) and 679(2); Constitution of India - Article 226
AppellantN.V. Subba Rao and ors.
RespondentThe Government of Andhra Pradesh and ors.
Appellant AdvocateP. Babul Reddy and ;I. Koti Reddy, Advs.
Respondent AdvocateThird Govt. Pleader, ;Tej Rai Kapoor and ;P. Shiv Shankar, Advs.
DispositionPetition allowed
Excerpt:
.....by r3 before government under section 679 allowed - petitioner contended that government had no power to review its previous decision - order made under section 679 (1) cannot be reviewed - power to review not expressly conferred - government not entitled to review its former order. - - he used to slack bones in huge quantities in open space as there are no godowns and consequently it used to emanate foul smell whenever there was a slight drizzle and the factory used to emanate unbearable pungent smell making the life of the residents of that locality miserable. it is only such an order passed by the government which can be revised or modified or even revoked in pursuance of the power conferred on the government under clause (c) of sub-section (2). 6. when the order dated 26th..........of mr. babulu reddy, the learned counsel for the petitioners, is that the government had no power to review their earlier order of 26th march, 1962. in order to appreciate this contention it is necessary to look into section 679 of the act. according to sub-section (1) of that section, the government is entitled, at any time for the purposes of satisfying itself as to the correctness, legality, propriety or regularity of any proceeding of or order passed by the commissioner or any officer subordinate to him, to call for the records and examine it and pass such orders with reference thereto and it thinks fit. there is no dispute that the order dated 26th march, 1962 was passed by the government at the instance of the third respondent under : sub-section (1) of section 679. the.....
Judgment:
ORDER

1. This is an application under Article 226 of the Constitution of India for the issue of a writ of certiorari seeking to quash G.O. Ms. No. 789, M.A., dated 4-7-1963. It arises in the following circumstances.

2. The petitioners have their houses either owned by them or living as tenants situated within a distance of ft furlong from the bone factory owned by the third respondent. It is contended by the petitioners that the Barkatpura locality, where this factory is situated, is a residential locality. The third respondent obtained a licence for running a factory for stacking and crushing bones for being used as fertilisers and other purposes. He used to slack bones in huge quantities in open space as there are no godowns and consequently it used to emanate foul smell whenever there was a slight drizzle and the factory used to emanate unbearable pungent smell making the life of the residents of that locality miserable. The petitioners, therefore, filed an application to the Municipal Commissioner of the Municipal Corporation of Hyderabad objecting to the existence of the factory and grant or the licence to run the same under the Hyderabad Municipal Corpora-ration Act. The Municipal Commissioner through his order dated 3-10-1961 directed the third respondent to shift the factory from the said locality to any other non-residential locality.

3. Aggrieved by that order, the third respondent preferred a revision petition under Section 679 of the Act before the Government. The State Government rejected the revision petition on 26-3-1962.

4. It seems that the third respondent, after a lapse of over a year filed a petition before the Government on 4-6-1963. There is some conflict in regard to the character of this petition. While it is contended by the learned Advocate for the third respondent that it was an Independent revision petition filed under Section 679 of the Act against a separate order passed by the Commissioner on 2nd April, 1962 directing the third respondent to close the factory, it is contended by the petitioners that it was an application to review the previous order of 26th March, 1962. Whatever that may be, the Government reviewed the order passed on 26th March, 1962 and by and under and order dated 4-7-1963 directed the Commissioner to renew the licence on certain conditions. It is this order of the State Government that is now impugned in this writ petition.

5. The principal contention of Mr. Babulu Reddy, the learned counsel for the petitioners, is that the Government had no power to review their earlier order of 26th March, 1962. In order to appreciate this contention it is necessary to look into Section 679 of the Act. According to Sub-section (1) of that section, the Government is entitled, at any time for the purposes of satisfying itself as to the correctness, legality, propriety or regularity of any proceeding of or order passed by the Commissioner Or any officer subordinate to him, to call for the records and examine it and pass such orders with reference thereto and it thinks fit. There is no dispute that the order dated 26th March, 1962 was passed by the Government at the instance of the third respondent under : Sub-section (1) of Section 679. The short question, therefore, is whether an order passed under Sub-section (1) of Section 679 can be revised by the Government under the power to review the orders. The only power, which the Government has to review Its own orders, is derived from Clause (c) of Sub-section (2) of Section 679 of the Act. That clause is in the following terms:--

'The Government may at any time on representation by Corporation or otherwise, revise modify or revoke any order passed under Clause (a).'

Reference to Clause (a) is obliviously to Clause (a) of Sub-section (2) as there are no clauses to Sub-section (1). According to this clause, where the Government is of opinion that the execution of any resolution or order passed by the Corporation or the doing of any act which is about to be done or is being done by Or on behalf of the Corporation is in contravention of or in excess of powers conferred by the Act or of any law for the time being in force or likely to lead to a breach of peace. It may, by order in writing, suspend the execution of such resolution or order or prohibit the doing of any such act. It is only such an order passed by the Government which can be revised or modified or even revoked in pursuance of the power conferred on the Government under Clause (c) of Sub-section (2).

6. When the order dated 26th March 1962 is not an order passed under Sub-section (2) as the order was not passed by the Corporation, I fail to see how the Government can revise or modify or revoke the order dated 26th March, 1962. No other provision was brought to my notice under which the Government could have reviewed the order passed by itself under Sub-section (1) of Section 679. It is now a fairly settled rule of law that like the power to hear appeal, the power to review must expressly be conferred by a statute. In the absence of any such conferment of power to review, it is plain that the Government could not have reviewed its order passed on 26th March, 1962.

7. I am not impressed by the argument that since the 3rd respondent had filed a revision petition on 4th June, 1963, referred to in the order, I must hold mat the Government had allowed only the revision and did not exercise the powers of review. The order itself is clear and in more than one place it expressly states that the Government is reviewing its earlier order of 26th March, 1962. Even otherwise, there are difficulties in accepting this contention. If the order dated 26th March, 1962 was not intended to be reviewed by the Government then it was a final order directing the 3rd respondent to shift the factory. In the face of that order, an order dated 4-7-1963 could not have been passed by the Government. It is only because of that difficulty that the Government had reviewed the order of 26th March, 1962. Thus the Government has exercised a power which it did not have and such an order is bad in law. I do not therefore experience any difficulty in reaching the conclusion that the impugned order suffers from an infirmity on the basis of which I think this Court ought to that order as bad in law.

8. It was contended by the learned counsel for the 3rd respondent that the petitioners have no right or any direct interest in the matter in dispute and no writ of certiorari therefore could be issued at their instance. I am not impressed by that argument. It is not in doubt that it is the petitioners, who had raised the objections before the Commissioner of the Municipal Corporation, and it is only on the basis of their objections that the Commissioner had passed an order on 3-10-1961 against which the 3rd respondent had preferred a revision petition. If the 3rd respondent had not made them parties to the revision it was he who ought to be blamed. It cannot, however, be argued that the petitioners are not the aggrieved parties. They were not required to appear before the Government because the Government had rejected the revision petition filed by the 3rd respondent. But when the Government wanted to review its earlier order affecting the petitioners, the Government ought to have heard them before the impugned order was passed. Whatever that may be, I do not think it can validly be contended that the petitioners are not aggrieved parties. They are the residents of the locality whose health is alleged to be affected by the existence of the foul smell emanating from the stacks at the factory. They have therefore a standing to approach this Court and question the validity of the order which affected them.

9. Even otherwise, it is now a fairly well established rule of law that a writ of certiorari, although cannot be claimed as a matter of right nor can be issued as a matter of course, can be sought for either by an aggrieved party or a member of the public, particularly in cases where the question of total or inherent lack of jurisdiction of a tribunal is involved. The difference in these two cases is that if the writ petition is filed by an aggrieved party, the High Court cannot dismiss the application on the ground that be has no locus standi or standing. But in the other case, the issuance of a writ is a discretionary matter for the High Court and it is open to this Court to act or refuse to act at the instance of a person who is not directly affected, or in other words, is not an aggrieved party. In a case, however, where the question of total or inherent lack of jurisdiction of a tribunal is involved, and the Court is satisfied that the tribunal has usurped jurisdiction which it did not have, this Court would not hesitate even at the instance of a stranger to issue a writ of cretiorari. I am not therefore inclined to hold that the petitioners are strangers and that no writ of certiorari can be issued at their instance.

10. It was further contended by the learned Advocate for the 3rd respondent that there has been inordinate delay in filing the writ petition. While the impugned order was passed on 4-7-1963, the writ petition was filed on 18-8-1964, a year afterwards. It is however contended by the petitioners in their affidavit that since they were not parties to the review proceedings, they came to know of the order only when the 3rd respondent, who has filed another writ petition, wanted to withdraw it on the ground that the Government had revised the order of 26th March, 1962. This portion of the affidavit has not been repudiated satisfactorily and I have no reason to disbelieve that. I cannot therefore dismiss the writ petition on the ground of delay.

11. The learned Advocate for the 3rd respondent finally argued that I should not exercise the discretionary power under Article 226 of the Constitution when the 3rd respondent, in pursuance of the notice given by the Commissioner, carried on repairs and now no foul smell emanates from the factory. It was also contended that he has another factory at Saroornagar where he stocks the raw bones and there is therefore no possibility of any nuisance in that locality. These facts are in dispute and it is plain that I cannot decide these matters of dispute. It is also unnecessary to do so in this writ petition. Since 1 am of the opinion that the Government was not competent to revise its earlier order, the order would be quashed. ' What happens 'subsequently is a matter which does not concern this Court. 1 am however told that the 3rd respondent, who was granted a licence till 31st March, 1964, was not subsequently granted any licence to run the factory. He has necessarily therefore to approach the Municipal Council for granting or renewing the licence to run the bone factory. It is always open to the Municipal Commissioner to keep in view the existing circumstances and after hearing the petitioners or other persons' objections, if they arc raised before him, decide independently whether the licence should be granted to the 3rd respondent or not. He need not be influenced by any direction given by the Government or any observation made by this Court even in this order. He is the licensing authority and it is for him to keep the relevant matters and keep out all irrelevant considerations and decide the matter in accordance with law. I have no reason to believe that the Municipal Commissioner will not do that. I do not therefore think that on the basis of this contention I can refuse to issue the writ although I am satisfied that the Government, in exercising the power of review, has exercised the power which it did not have.

12. For all the aforesaid reasons, 1 allowthe writ petition and quash the impugned orderdated 4-7-1963 of the 1st respondent. In thecircumstances of the case, I make no order asto costs. Government Pleader's fee Rs. 100/-.


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