Gopalakrishnan Nair, J.
1. The petitioner asks for a writ ofMandamus to restrain the Chairman and the Commissioner of the Anakapalle Municipality fromplacing tax appeals before the Municipal Counciland also from giving effect to the decisions, whichthe Council reached on 28-3-1963 in certain taxappeals.
2. The salient facts are, few and may briefly be stated as follows: The Anakapalle Municipal Council consists of 28 members. There appears to have been some faction among the members. This seems to lie at the root of the present writ petition.
3. On 22-9-1960 a meeting of the Municipal Council was called as desired by a section of the Council. The purpose for which the meeting was desired by this section of the members was to constitute certain committees and delegate to them the powers of the Municipal Council in certain matters. This meeting was presided over by the Chairman, who is the 2nd respondent herein. It appears that a member raised a point for order, stating that the resolution contemplated to be moved at the meeting would constitute an encroachment on the powers of the Commissioner and Chairman of the Municipality. The Chairman appears to have readily agreed with this view and declared that the meeting was dissolved. This was not agreed to by fifteen members of the Council. They, therefore, continued the meeting even though the Chairman had left; and passed a resolution appointing several committees, one of which was designated as 'Appeals Committee', which was invested with the power to hear tax appeals preferred to the Municipal Council.
The validity of the resolution appears to have been doubted by the Commissioner (1st respondent). He referred it to the Government; but the Government stated that the resolution was good and the point of order raised at the meeting of 22-9-1960 was unsustainable and that the ruling given by the Chairman, who presided over the meeting, was not valid. The Government is alleged to have upheld the validity of the resolution appointing the Committees and to have directs ed that further steps be taken to give effect to the resolution.
4. The petitioner says that despite this, none of the tax appeals was placed by the Chairman or the Commissioner before the Appeals Committee. What is more, on 28-3-1963, some tax appeals were placed, before the Municipal Council itself and they were disposed of by it. The petitioner, who was appointed convenor of the Appeals Committee has therefore moved this Court for the issue of writ of mandamus for the purposes already stated.
5. The Chairman and the Commissioner of the Municipality who are the respondents, resist this petition. The grounds set out in their counter affidavit are mainly factual in character. They say that the resolution of 22-9-60 has not been published as required by section 312 of the District Municipalities Act and has not therefore come into force and effect. They further allege that the question of the validity of the resolution is still under the consideration of the Government. The other allegation is that the proper remedy of the petitioner is to move the Government under Section 36 of the Act and not to seek a writ of Mandamus.
6. In the view I propose to take on the legal aspect of the case, it does not seem to be necessary to deal with the grounds expressly set up in the counter-affidavit. The complaint of the petitioner is that as an Appeals Committee has been constituted and the power of hearing the tax appeals delegated to it, the Municipal Council, which made the delegation cannot itself hear the tax appeals. The constitution of the appeals committee and the delegation of powers to it was admittedly done in exercise of the powers of the Council under Section 23 of the Madras District Municipalities Act. It is admitted, and it cannot be gainsaid, that the Municipal Council itself was entitled to hear the tax appeals. It is this power which it undoubtedly had, that was delegated to the Appeals Committee. But for this delegation, the appeals committee would not have the authority to hear the tax appeals. Thus, two important things clearly emerge:
(1) that the power of hearing tax appeals vests in the municipal council itself; and
(2) The Appeals Committee could claim to exercise that power only by virtue of a delegation from the Municipal Council.
This being the incontrovertible position, the question arises as to whether after the delegation by the Municipal Council to the Appeals Committee, the former can hear the tax appeals. The contention of the learned counsel for the petitioner is that once a power is delegated, the delegator cannot, so long as the delegation subsists, exercise that power. According to him, so long as the resolution delegating the power to the appeals committee has not been rescinded by the Municipal Council, the Municipal Council has no authority to hear tax appeals. I am not able to agree to this proposition; and if this proposition is not upheld, the basis of the present writ petition falls to the ground. The intention of Section 23 of the Madras District Municipalities Act seeing to be to enable a Municipal Council to provide for a division of work with a view to efficient administration of the Municipality. Instead of concentrating in its own hands, the entire work connected with the Municipality, the Municipal Council disburdens itself of a part of its work by delegating certain of its powers and functions to committees constituted from among the members of the council. By doing this, the municipal council is not shirking its duties or responsibilities; nor can it be taken to denude itself of its powers and functions. It is only making a convenient arrangement for the discharge of its varied duties and functions. The delegation cannot, therefore, have the intention or effect of the Municipal council totally depriving itself of the power or authority it delegates. Such an intention cannot reasonably be attributed to Section 23 either. The position that delegation does not involve a denudation of power seems to be well established on authority.
7. In Huth v. Clarke, (1890) 25 QBD 391 the facts were that a duly appointed executive committee of a county council made a valid order delegating to a local sub-committee its powers under the Rabies Order, 1887. By virtue of the delegation, the local sub-committee was empowered to pass orders as to the muzzling of dogs and keeping them under control. The sub-committee did-not, however, pass any order or regulation under the Rabies Order relating to the muzzling or keeping under control of dogs. While the delegation was subsisting, and without its being revoked, the executive committee of the county council itself passed certain regulations relating to the muzzling and keeping under control of dogs. Huth, the appellant, was charged with permitting his dog to be at large without being effectivelymuzzled or kept under control, in contravention of the order passed, by the executive committeeunder the Rabies Order, 1887, and was convicted. On appeal before the Queen's Bench Division, he admitted that his dog was neither muzzled or keptunder proper control by him; but he contendedthat the regulation of the executive committee relating to the muzzling and keeping under controlof dogs was bad on the ground that it could be made only by the sub-committee to which theexecutive committee had delegated its powers. Dealing with this contention, Lord Coleridge, C. J., said at page 394:
'It is suggested, however, that, because, therewas another authority which might (had it chosen) have violated good sense by making an inconsistent order, the executive committee had no power to make the regulation in question. But delegation does not imply a denudation of power and authority; the 6th schedule of the Act provides that the delegation may be revoked or altered and the powers resumed by the executive committee. The word 'delegation' implies that powers are committed to another person or body which are as a rule always subject to resumption by the power delegating, and many examples of this might be given. Unless, therefore, it is controlled bystatute, the delegating power can at any timeresume its authority. Here the executive committee has exercised the power which the sub-committee might have exercised -- but did not -- and no question of conflict of jurisdiction arises.'
Wills, J. at p. 395 observed:
'Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. The best illustration of the use of the word is afforded by the maxim, delegatus non potest delegare, as to the meaning of which it is significant that it is dealt with in Broom's Legal Maxims under the law of contracts; it is never used by legal writers, so far as I am aware, as implying that the delegating person parts with his power in such a manner as to denude himself of his rights. If it is correct to use the word in the way in which it is used in the maxim, as generally understood, the word 'delegate' means little more than an agent. The notion, therefore, that the use of the word 'delegate' implies that the executive committee parted with their own authority is misconceived.'
This decision is a leading authority on the scope and effect of delegation of statutory powers and has been cited with approval in Gordon, Dadds and Co. v. Morris, (1945) 2 All ER 616 and in Manton y. Brighton Corporation, (1951) 2 All ER 101.
8. A Division Bench of the Madras High Court in P. Kamiah v. Chief Secretary, : AIR1950Mad100 followed the dicta in (1890) 25 QBD 391. Applying the principle of this decision to the facts of the instant case, it emerges that the Municipal Council by delegating its powers of hearing tax appeals to the Appeals Committee did not part with those powers or denude itself of them. Even during the subsistence of the delegation, it is open to it to exercise the power of hearing tax appeals. But good sense would certainly require that it should avoid a conflict of decision or jurisdiction with its delegate. In the present case there has been no possibility of any such conflict because the respondents have refrained from placing any tax appeal before the Appeals Committee. And in case any appeals are placed before the Appeals Committee, they will be dealt with only by the Committee and will not go to the council for being heard. Therefore, the possibility of any conflicting decisions or clash of jurisdiction is not at all likely to arise in this case and indeed has not arisen so far.
9. The only question that falls for decision here, as I already stated, is whether the Council can hear tax appeals in spite of the delegation to the Appeals Committee. In view of what I have said above, I am clearly of opinion that the Council does have that power and that it does not lose it merely because of the delegation to the Appeals Committee. In this view of the legal position, I do not think it is necessary to deal with the questions of fact which have been raised in the counter-affidavit of the respondents.
10. The learned counsel for the petitioner urged at the end of his arguments that the point of law relating to delegation of statutory powers had not been taken in the counter-affidavit of the respondents. It is not necessary to state questions of law in a counter-affidavit. It must ordinarily be devoted to statements of fact and not of law. The learned counsel for the respondents did raise the question of law relating to delegation of powers at the hearing of this writ petition, as he was entitled to do. I do not think the objection of the petitioner's learned counsel that the legal ground was not set up in the counter-affidavit is entitled to weight.
11. It follows from the foregoing that the writ petition fails, and it is hereby dismissed with costs. Advocate's fee Rs. 100/-.