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Kalari Nagabhushana Rao Vs. the Collector, Panchayat Wing, Guntur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 2 of 1978
Judge
Reported inAIR1978AP444
ActsAndhra Pradesh Gram Panchayats Act, 1964 - Sections 50(4); Constitution of India - Article 226
AppellantKalari Nagabhushana Rao
RespondentThe Collector, Panchayat Wing, Guntur and ors.
Appellant AdvocateP.A. Choudary, Adv.
Respondent AdvocateGovt. Pleader for ;P. Raj and ;B.V. Subbaiah, Advs.
Excerpt:
.....and article 226 of constitution of india - removal of 'sarpanch' by collector challenged before state government - state government called for para-wise explanation of removal order from collector - appeal dismissed by state government relying on collector's explanations - aggrieved ignorant of collector's report - opinion of collector disputing merits of appeal not a valid ground to dismiss such appeal - no reasonable opportunity granted to aggrieved for explaining his view - state government acting as quasi-judicial body liable to comply principles of natural justice - dismissal of appeal illegal - matter remitted to state government to be decided in accordance with procedures. - - the earlier such practices are given up, the better for the concerned parties and people at large......gives rise to a short and important question of law relating to the exercise of power by the state government while disposing of an appeal under s. 50(4) of the gram panchayats act (hereinafter referred to as the act), against an order of the district collector, dismissing a sarpanch on charges of misappropriation. in order to appreciate the scope of the question, it is necessary to state briefly the facts. 2. the appellant was removed from the office of the sarpanch with effect from 1-12-76 by the district collector, guntur by his proceedings dated 18-11-76 for certain irregularities committed by him in the administration of the gram panchayat. some charged relate to miss-appropriation of the panchajat's funds while the appellant was in the office as sarpanch. the appellant.....
Judgment:

Kondaiah, J.

1. This appeal gives rise to a short and important question of law relating to the exercise of power by the State Government while disposing of an appeal under S. 50(4) of the Gram Panchayats Act (hereinafter referred to as the Act), against an order of the District Collector, dismissing a Sarpanch on charges of misappropriation. In order to appreciate the scope of the question, it is necessary to state briefly the facts.

2. The appellant was removed from the office of the Sarpanch with effect from 1-12-76 by the District Collector, Guntur by his proceedings dated 18-11-76 for certain irregularities committed by him in the administration of the Gram Panchayat. Some charged relate to miss-appropriation of the Panchajat's funds while the appellant was in the office as Sarpanch. The appellant preferred an appeal to the State Government under S. 50 (4) of the Act on 26-12-76. The Government called for para-wise remarks on the appeal memo from the same District Collector against whose order the appeal was preferred. The District Collector submitted his para-wise remarks along with a report on 17-2-77. The State Government by its order in G. O. Ms. No. 403 dated 11-5-77 dismissed the appeal preferred by the appellant. It is evident from the order of the Government that the appeal preferred by the appellant was examined 'with reference to the records and report of the Collector, Guntur.' (See para 3 of the G. O. ). The correctness of this order was challenged by the appellant in this court in W. P. No. 1298/77. Before the learned single Judge it was contended that the Government has not exercised its jurisdiction in accordance with law; that it was not competent and open to the State Government to call for para-wise remarks or report from the District Collector which amount to consultation and therefore the appellate order was violative of the rules of natural justice and also illegal as the Government has not exercised its jurisdiction in accordance with law. This plea of the appellant was not accepted by the single Judge, holding that no fresh material has been submitted by the Collector in his report and there was no prejudice that has been caused to the appellant and, therefore the order is not violative of the principles of natural justice. Hence this appeal.

3. Sri P. A. Choudary, learned counsel for the appellant contends that the State Government while exercising its powers under S. 50 (4) of the Act is not competent to call for the report or consult or to have any connection with the District Collector or any outside authority and the order must be passed by the State Government in its own right and without any outside consultation; that the report sent by the District Collector has been considered by the appellate authority without providing an opportunity to the appellant about the contents of the report and that the order of the appellate authority is also violative of the rules of natural justice. On the other hand, it is argued by the learned Government Pleader inter alia that no prejudice has been caused to the appellant as no new material has been indicated by the District Collector in his report dated 17-2-77 and there is no illegality in the procedure adopted and, therefore, there in no need to interfere with appellate order.

4. At the outset we may state that the appellant's counsel did not argue before us on the merits relating to the charges framed against the appellant by the District Collector. The counsel concentrated mainly on the procedure adopted by the State Government in the exercise of its jurisdiction under S. 50 (4). Admittedly the State Government is the appellate authority, in the instant case to consider the correctness or otherwise of the order passed by the District Collector under S. 50 (1) of the Act against the appellant. He was found guilty by the District Collector of certain irregularities and also misappropriation. However, we need not advert to the same as the same have not been canvassed before us. We shall therefore, confine ourselves to the question about the competency and the jurisdiction of the State Government in calling for a report of the District Collector in the instant case and the effect of the same.

5. It admits of no doubt that the power of the District Collector vested under sub-section (1) of Section 50 to remove a Sarpanch for any irregularities committed or for the abuse of the position of Sarpanch is a quasi-judicial power. It is equally clear that the State Government is invested with a similar quasi-judicial authority under sub-sec, (4) of S. 50 to consider the appeal preferred against the order of the District Collector to it. The appellate authority is also entitled to grant stay of the operation of the order passed by the District Collector under sub-sec. (1) of S. 50 or sub-sec (2) of S. 50. The appellate authority is entitled to allow the appeal and cancel the notification issued or order passed by the District Collector under sub-sec. (1) or (2) of s. 50 or reject the appeal. The short question on which the decision of this appeal turns upon is whether the quasi-judicial appellate authority is competent to call for a para-wise report from the District Collector against whose order an appeal was pending before it. A judicial authority or a quasi-judicial tribunal has to exercise the statutory appellate powers by itself on a consideration of the material before it and on the representations made by the concerned parties without any interference from any outside authority. The District Collector according to the counsel for the respondents is not an outsider but a party to the proceeding. True, as submitted by Sri Subbaiah, learned counsel for the fourth respondent, the District Collector has framed the charges against the appellant herein and passed an order of removal from the office of Sarpanch, finding him guilty of the charges levelled against him for commission of certain irregularities and also misappropriation. However, he is not a party before the appellate authority, the State Government. No provision is made either in the Act or the Rules made thereunder that the District Collector has a right to make representation before the appellate authority to sustain his order. Unless and until such a power or right is given to the District Collector under the Statute or any statutory rule, it is not open to him to make any suo motu representations or any representations to the effect that the order passed by him was correct and there is no merit in any of the grounds taken by the appellant in his memorandum of grounds and the appeal must be dismissed. Such right is provided only to the parties concerned but not to the authority which passes the order, unless it is provided in the Act itself. Admittedly, no such provision has been made in the present Act or the Rules providing an opportunity to the District Collector to sustain the stand taken by him in his order against which an appeal has been preferred to the State Government. We do no also find any statutory authority or rule enabling the State Government to call for any report from the Collector or any other authority, in this regard. There is no specific provision relating to the procedure. But the State Government must be conscious of the fact that it is exercising its powers as quasi-judicial appellate authority against the order of the District Collector under a statute. Such a statutory quasi-judicial appellate tribunal or authority should not either consult or consider any other opinion or view of either the District Collector or any other authority while exercising its appellate powers. Any consultation with, or interference by the District Collector or any outside authority would vitiate the functioning of the appellate authority as an independent statutory quasi-judicial tribunal. In administrative matters an appellate authority might exercise its discretion to call for such remarks or reports. But such a procedure is not permissible in the case of exercise of its powers as a quasi-judicial appellate tribunal.

6. The further submission of Mr. Subbaiah that mere calling for a para-wise remarks on the memorandum of appeal would not amount t consultation or interference with the exercise of the appellate powers by the State Government cannot also be acceded to. The consultation may be in writing or oral; the expression of the opinion may e in writing or oral. Irrespective of the mode of expression of opinion or consultation, any opinion expressed by an outside authority to the appellate authority at the time of consideration of the appeal would, in out opinion, amount to interference with the exercise of the quasi-judicial appellate powers. It amounts to consultation in some form. In the instant case, what has been done by both the Government and the District Collector is not provided for in the statute or the rules. The State Government had in fact considered the same and thereafter formed its opinion. Instead of forming its own opinion on merits the appellate authority has come to the conclusion that the appeal is to be rejected after considering the opinion of the District Collector and the para-wise remarks sent by him to the effect that the order passed by him was correct and there was no merit in the appeal. It is not possible for this Court to indicate or find out how much the appellate authority has been influenced by the opinion of the District Collector or the remarks sent by him. It is sufficient for our purpose to hold that the procedure adopted by the appellate authority herein is illegal apart from being irregular and that it has not exercised its power independently and without any outside interference or consultation. Where quasi-judicial tribunal exercise its statutory power, it should not appear to be independent but should also appear its power without any outside interference of any kind. This view of ours gains support from a decision of the Madras High Court in Raman Menon v. State of Madras (1956) 2 Mad LJ 228 wherein Rejagopala Ayyangar J., quashed the order passed by the State of Madras confirming the order of the District Collector passed under S. 57 of the Madras Co-operative Societies Act as it was found that the District Collector had sent up a letter to the State Government. The learned Judge found on facts that the State Government examined the contentions of the petitioner therein in consultation with the Collector of Malabar and, therefore, the District Collector being an executive authority and the State Government being a quasi-judicial authority cannot consider any opinion of the executive authority unless the statute makes provision therefor. The learned Judge, therefore, found that the order passed by the State Government in revision after taking was filed, was illegal. That was also a case where a sum of Rs. 4,567-2-7 was said to have been misappropriated by the Secretary of a Producer cum-Consumer Co-operative Society in Ponnai, Malabar District. We, therefore, find that the impugned order passed by the State Government is illegal as it consulted the District Collector against whose order an appeal had been preferred before exercising its appellate quasi-judicial power under sub-sec. (4) of S. 50 of the Act. Where there is interference by any outside authority with the functioning of the quasi-judicial appellate authority, the order passed by such authority must be held to be illegal.

7. The decision of the Supreme Court in A. k. Kraipak v. Union of India, : [1970]1SCR457 relied upon by the learned Government Pleader in support of his contention that there is no prejudice caused to the petitioner-appellant herein as there was no new material in the communication of the District Collector dated 17-2-77, would not in any way assist the stand taken by the respondents. Therein, the principles of natural justice have been enunciated by Hegde, J. who spoke for the Court. It was held that the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated and that what principle of natural justice will apply must depend in the facts and circumstances under which an enquiry is held. We may notice in this regard what the learned Judge rules at page 155:---

'The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore, what we have to see is whether there is reasonable ground for believing that he was likely to have been biased.'

In the present case the report of the District Collector was admittedly, nor brought to the notice of the appellant herein. No opportunity was given to him to meet the same. May be, no new material was mentioned in that report, but the does not know what report was sent by the Collector. The fact remains that the District Collect opined that there was no merit in the appeal and the appeal must be rejected. But the opinion expressed by the District Collector to dismiss the appeal was taken into account by the appellate authority. This itself is sufficient to hold that prejudice has been caused to the appellant. Though the District Collector must have expressed some opinion in his original order, it is neither proper nor permissible for him to once again state to the appellate authority, unless it is provided for in the statute, that his order was correct and the appeal must be rejected as it is devoid of any merit and the appellate authority should not make use of such opinion or report against the appellant without giving him a reasonable and fair opportunity to explain his stand. The very practice of calling for reports or para-wise remakes on the appeal memorandum by the statutory quasi-judicial appellate tribunal or authority unless specifically provided for in the statute or the rules framed thereunder, must be deprecated. Such a procedure is not only unjust and improper but would also prejudice to a great extent the case of the very person who had come to the appellate tribunal with a definite case that what has been done by the original authority was illegal incorrect and unjust. Such a practice may be there fore a number of years but it must be put an end to. The earlier such practices are given up, the better for the concerned parties and people at large. Proper and independent exercise of powers and functions by a statutory quasi-judicial appellate authority or tribunal is essential and necessary for the administration of justice.

8.For all the above reasons we are unable to agree with the learned single Judge that no prejudice has been caused to the appellant as no new material has been brought in by the District Collector in his report. We, therefore, hold that the order passed by the State Government is not only illegal but is also violative of rules of natural justice and is liable to be quashed and is hereby quashed. The order under appeal is set aside, writ will issue as prayed for. Advocate's fee Rs. 150/-. We remit back the case to the State Government with a direction to dispose of the appeal preferred by the appellant before us, afresh in the light of the observations made in this judgement.

9. Case remanded.


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