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Viqar Ullah Vs. District Magistrate, Bijnor and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1044 of 1957
Judge
Reported inAIR1958All502
ActsUttar Pradesh Town Areas Act, 1914 - Sections 36(1); Constitution of India - Article 166
AppellantViqar Ullah
RespondentDistrict Magistrate, Bijnor and anr.
Appellant AdvocateR.K. Garg, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition rejected
Excerpt:
.....vest in the authority.  - - it further recites that the governor is satisfied that the town area committee had persistently made defaults in the performance of its primary duties imposed on it by the town areas act. it does not specify that the state government has been so satisfied. it is, therefore, argued that there was no satisfaction of the state government in the present case and consequently the condition precedent for the issue of a notification under section 36 is not satisfied. in the notification it is provided that the governor has been satisfied and thus the provisions of section 36 have not been complied with. ' this article to my mind therefore clearly provides that all the executive action of the state government is to be expressed to be taken in the name of..........thereafter on 8-6-1957. a notification was issued by the state government superseding the town areacommittee, sherkot. the petitioner on 19-6-1957, moved an application before the district magistrate, bijnor, asking him to forbear from interfering with the exercise of powers and duties of the petitioner under the cover of the said notification of the state government.the district magistrate ordered status quo to be maintained and fixed the 1st of july, 1957, for the hearing of the petitioner's objection. on 1-7-1957, the district magistrate, held that the petitioner will not be deemed to have vacated office of the chairman of the town area committee, sherkot, but the functions, powers and duties of the chairman would vest in the district magistrate and would be exercised by him with.....
Judgment:
ORDER

G. Mehrotra, J.

1. This is an application under Article 226 of the Constitution praying for the following reliefs :

(a) A writ of mandamus commanding the Opposite Parties Nos. 1 and 2 to forbear from interfering with the functions of the petitioner as Chairman on the basis of the impugned notification and order of the District Magistrate.

(b) To issue a writ of certiorari or any other appropriate writ, order or direction quashing the Government notification and the order of the District Magistrate.

2. The facts briefly are that the petitioner Sri Viqar Ullah is the Chairman of the Town Area Committee, Sherkot, District Bijnor. He was elected in a bye-election held on 20-8-1955, for the remaining period which expires in October 1957. On 17-9-1956, he received a communication from the District Magistrate, Bijnor, under which certain charges framed against the said Town Area Committee were served upon him and he was asked to forward the explanation of the Town Area Committee along with his separate comments on the said explanation by 1-10-1956.

On 27-9-1956, the Committee submitted its explanation and the petitioner forwarded the same with his comments. Some of the members tabled a no-confidence resolution against the petitioner being annoyed by his comments which was fixed for 23-5-1957. for discussion. The petitioner challenged the notice to move the no-confidence motion by means of a writ petition here. Thereafter on 8-6-1957. a notification was issued by the State Government superseding the Town AreaCommittee, Sherkot. The petitioner on 19-6-1957, moved an application before the District Magistrate, Bijnor, asking him to forbear from interfering with the exercise of powers and duties of the petitioner under the cover of the said notification of the State Government.

The District Magistrate ordered status quo to be maintained and fixed the 1st of July, 1957, for the hearing of the petitioner's objection. On 1-7-1957, the District Magistrate, held that the petitioner will not be deemed to have vacated office of the Chairman of the Town Area Committee, Sherkot, but the functions, powers and duties of the Chairman would vest in the District Magistrate and would be exercised by him with effect from 4-6-1957. The petitioner has challenged the notification of the State Government superseding the Town Area Committee and also the order of the District Magistrate of 1-7-1957, by which he has held that the petitioner has not vacated his office as the Chairman but the functions, powers and duties should be exercised by the District Magistrate.

3. At the time of the hearing of the petition the petitioner's counsel, however, confined his arguments to the validity of the notification, superseding the Town Area Committee. The validity of the notification has been challenged on a number of grounds. It was contended firstly by the petitioner that the notification of 8-6-1957 purports to be in the name of the Governor. It further recites that the Governor is satisfied that the Town Area Committee had persistently made defaults in the performance of its primary duties imposed on it by the Town Areas Act.

It does not specify that the State Government has been so satisfied. The Governor is different and distinct from the Government. Section 36 of the Town Areas Act requires the satisfaction of the State Government before an action can be taken under the said section. It is, therefore, argued that there was no satisfaction of the State Government in the present case and consequently the condition precedent for the issue of a notification under Section 36 is not satisfied. The next point urged was that the notification does not contain reasons for making a declaration that the Committee had persistently made defaults in the performance of its primary duties. The notification is thus illegal and in contravention of the provisions of Section 36 of the Act.

It was thirdly contended that the duties pointed out in the notification are not duties imposed upon the Committee under the provisions of the U. P. Town Areas Act or any other Act. It cannot therefore be said that the Committee had persistently made defaults in the performance of its primary duties. Lastly it was contended that the notification was published in the Gazette a few days after the orders have actually been passed and under the provisions of the Act the members ceased to function from the date of the order. The consequence is that an inconsistency has been brought about and the order was incapable of being enforced and as such invalid.

4. Section 36 (1) of the Town Areas Act provides as follows:

'If, in the opinion of the State Government a committee persistently makes default in the performance of the duties imposed on it by or under this or any other Act for the time being in force, or exceeds or abuses its powers, State Government may, by an order published, with the reasons for making it, in the official Gazette, declare that committee to be in default, or to have exceeded or abused its powers; and supersede it for a period not exceeding two years to be specified in the order.'

5. Relying upon the provisions of this section it was contended that the opinion has to be formed by the State Government that the Committee had persistently made defaults in the performance of its duties. In the notification it is provided that the Governor has been satisfied and thus the provisions of Section 36 have not been complied with. Article 166 of the Constitution provides that 'all executive action of the Government of a State shall be expressed to be taken in the name of the Governor' and Clause (2) of Article 166 provides that:

'Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.'

This Article to my mind therefore clearly provides that all the executive action of the State Government is to be expressed to be taken in the name of the Governor. The contention rightly of the Standing Counsel is that the notification when it provides that the Governor has been satisfied it only complies with the provisions of Article 166. The notification read as a whole purports to express the executive action taken by the Government of a State. As a matter of fact the satisfaction in this case was of the State Government but in view of the provisions of Article 166 it is expressed to be taken in the name of the Governor.

It is not stated in the affidavit by the petitioner that in fact there was no satisfaction of the State Government. In these circumstances It cannot be said that the State Government in fact was not satisfied. Reliance was placed by the counsel for the petitioner on the case of State of Bombay v. Purushottam Jog, AIR 1952 SC 317 (A). The facts of that case briefly are that the petitioner was arrested under the orders of the District Magistrate. The detention was held to be invalid by the High Court. In view of the order of the High Court a number of cases were reviewed and fresh orders of detention were passed by the Government of Bombay in some cases. The order against the respondent before the Supreme Court in that case was in the following terms:

'Whereas, the Government of Bombay is satisfied with respect to the person known as Shri Purushottam Jog Naik of Ulga village, Taluka Karwar, District Kanara, with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, it is necessary to make the following order:

Now therefore in exercise of the power conferred by Sub-section (1) of Section 3 of the Preventive Detention Act. 1950 (No. IV of 1950), the Government of Bombay is pleased to direct that the said Shri Purushottam Jog Naik be detained.

By the order of the Governor of Bombay

Sd/- V. T. Dehejia,

Secretary to the Govern-

ment of Bombay,

Home Department.'

The petitioner filed an application in the Bombay High Court under Section 491 of the Criminal Procedure Code challenging the order of detention and succeeded. The High Court set aside the order firstly on the ground that the detention order was defective as it was not expressed in the proper legal form. In this connection the reasoning of the Bombay High Court was that under Article 166 the order should have been expressed in the name of the Governor although the order in question purported to be expressed in the name of the Government of Bombay.

The Supreme Court in appeal did not accept this contention and held that in substance the order purported to have been expressed in the name of the Governor. Particular reference was made to the following observations in that case at page 318:

'It is true that under Section 3(43-a)(a) of the General Clauses Act the words 'the State Government' mean the Governor, but if that be so, then the expression must be given the same meaning in the order which merely reproduces the language of Section 3, not indeed because the General Clauses Act applies to the order but because the order is reproducing the language of the Act, must therefore be taken to have the same meaning as in the Act itself, particularly as the order concludes with the words:

'By order of the Governor of Bombay.' Section 3 of the preventive Detention Act enables certain authorities specified by it to make orders of detention. These include, not only State Governments but also the Central Government, any District Magistrate or Sub-Divisional Magistrate and certain Commissioners of Police. The list does not include the Governor of a State. Now though the term 'State Government' appearing in an enactment means the Governor of the State, there is no provision of law which equates the term Governor with the State Government of which he happens to be the head.'

6. From this observation it is argued that in the present case the satisfaction required was of the State Government and the State Government could not be equated with the Governor so as to substitute the satisfaction of the Governor. As I have already pointed out there the Bombay High Court had held that the detention order had been expressed in the name of the Government of Bombay though under Article 166 of the Constitution it should have been expressed in the name of the Governor.

This reasoning of the Bombay High Court was not accepted by the Supreme Court and the Supreme Court held on the reading of the order that it purports to be one expressed by the Governor. That case to my mind does not apply to the facts of the present case. The present case is a converse of the one relied upon by the petitioner. In the present case the notification has been expressed in the name of the Governor in compliance with the provisions of Article 168.

Merely because it has been expressed in the name of the Governor it cannot be said that fact it was the Governor who was satisfied that the Committee committed defaults and not the State Government. In the absence of any assertion in the affidavit to the effect that in fact the State Government was not satisfied the mere fact that the notification purports to have expressed the satisfaction of the State Government in the name of the Governor in compliance with the provisions of Article 166 is no ground for holding that it was Governor who was satisfied and not the State Government. There is therefore no force in this contention of the petitioner.

6a. The next contention is that the requirements of Section 36 have not been fulfilled inasmuch as no reasons for making a declaration that the Town Area Committee had committed defaults in the performance of its duties has been given in the notification. According to the petitioner Section 36 requires that the State Government should be satisfied that the Committee had committed persistent defaults or had abused its power. On that satisfaction the State Government can by a notification declare that the Committee had in fact committed such defaults or had abused its power and also suspend the Committee.

The notification provided for under Section 36 has to contain both the declaration to the effect that there had been a persistent failure on the part of the Committee to carry out its duties and also the order suspending the Committee. The words 'with the reasons for making it' in Section 36 govern not only the order of suspension but also the declaration, it is therefore contended by the petitioner that it was obligatory on the State Government to give in the notification the reasons for making such a declaraion. Reliance for this proposition was placed on the case of Town Area Committee Jansath v. State of Uttar Pradesh, 1957 All LJ 85 (B). The facts of that case were different from the facts of the present case.

It was, on the consideration of the notification in that case held by me that no reasons as required under the provisions of Section 36 were given. In each case the notification will have to be examined in order to determine whether there was compliance with the provisions of Section 36 or not. In the present case the notification relevant for the purposes of determining this question is as follows :

'Whereas the Governor is satisfied that the Town Area Committee Sherkot, District Bijnor, has persistently made defaults in the performance of his primary duties imposed on it, by the U. P. Town Areas Act, 1914 (Act No. II of 1914) for instance it has failed to make proper arrangements for light and sanitation within the Town Area and has failed to take effective steps to realise the arrears of taxes, and the party frictions in the Town Area Committee have also resulted in pitiable conditions in the committee affairs.

Now, therefore, in exercise of the powers conferred by Sub-section (1) of Section 39 of the said Act, the Governor of Uttar Pradesh is pleased to declare the aforesaid Committee to be in default in the performance of the duties imposed on it by the aforesaid Act. .....'

The petitioner contends that the instances, such as failure to make proper arrangements for lighting and sanitation, and failing to take effective steps to realise the arrears of taxes and the party frictions mentioned in the notification are only the enumeration of the duties in respect of which the Governor was satisfied that the Committee had committed persistent defaults.

They are not the reasons for a declaration or for making an order. In my opinion this is not the correct reading of the notification. The Governor was satisfied that the Committee had persistently made defaults. The reasons for such satisfaction are (i) failure to make proper arrangements for lighting and sanitation (ii) failure to take effective steps to realise the arrears of taxes, and (iii) party frictions in the Town Area Committee which has resulted in pitiable conditions in the Committee affairs. All these are equally the reasons for the State Government to make a declaration as required under Section 36.

The opinion may have been formed on certain materials before the State Government by which the State Government may have satisfied itself prima facie that there was a default in the performance of the primary duties by the Committee and the specification of the duties in respect of which the defaults are said to have been committed is itself the reason for the State Government to make a declaration. It cannot therefore be said that no reasons are mentioned in the notification as required by Section 36. The notification therefore cannot be quashed on the ground that it does not fulfil the requirements of Section 36.

7. I shall now take up the last point urged by the petitioner. It is urged that the consequence of the publication of the order of supersession is that the Chairman ceases to function from the date of the order and all the duties, rights and obligations of the Committee vest in the authority appointed under the notification. In the present case the order was passed on 4-6-1957 which was published on 8-6-1957 and the petitioner asserts that long after that he continued to exercise the powers of the Chairman. The argument therefore is that the order by itself was inoperative.

The argument in substance amounts to this that as the provisions of Section 36 which enumerates the consequence following an order suspending the Committee cannot be given effect to literally the notification is rendered invalid. Such a consequence of the order of supersession is that all the duties and functions of the Committee vest in the authority mentioned under the notification; but that does not necessarily mean that the authority should be in a position to exercise those rights from the date of the order itself. The legal consequence is that the rights and duties of the authority mentioned in the notification will be deemed to have commenced from the date of the order, and not that he should be in a position to exercise those powers on the date of the order.

Some time is bound to elapse between the date of the order and the date of the publication. The legal consequence of the notification is that from the date of the order the rights and obligation of the Committee vest in the authority and such an interpretation does not lead to any inconsistency. The fact that the Chairman continued to function even after the publication of the notification does not by itself invalidate the notification either.

8. That last point urged is that the notification has pointed out the failure of the Committee to perform three kinds of acts: firstly that it has failed to make proper arrangements for lighting and sanitation, secondly has failed to take effective steps to realise the arrears of taxes, and thirdly there is a party friction among the members of the Committee. None of these three things are the duties imposed by the Act on the Committee and consequently the failure to perform any of those acts cannot mean failure to perform the primary duties imposed on the Committee.

9. Reliance was placed on Section 8 of the Act which provides that the duties of the Committee shall be to perform any duty specifically assigned to it by this Act or by any rule or order made under this Act. It is contended that the duties of the Committee failure to perform which makes it liable to be susperseded are the duties contemplated under Section 8 of the Act. Section 36 empowers the State Government to supersede a committee if it has persistently made defaults in the performance of its duties imposed on it by or under this or any other Act for the time being in force.

The words under Section 36 do not to my mind refer to the duties specifically assigned to the Committee under the Act but also to all the duties which are imposed on it by or under the Act. Such a duty may be imposed by implication. The whole scheme and the purpose of the Act will have to be examined in order to ascertain the duties of the Committee imposed under the Act. The Preamble of the Act lays down as follows:

'Whereas it is expedient to make better provision for the sanitation, lighting and improvement of town areas in the United Provinces of Agra and Oudh; It is hereby enacted as follows:'

Section 3 then gives power to the State Government by a notification to declare any town to be a town area for the purposes of this Act. Section 5 provides for the establishment of the Committee. It is therefore clear that the Committee is constituted for the purpose of carrying out the object of the Act which is, as I have already pointed out, to provide for sanitation, lighting and improvement of the town area. The maintenance of sanitation and proper arrangement for lighting are therefore by implication duties imposed on a committee under the Act.

One of the instances of the breach of the duty given in the notification is the failure of the Committee to realise arrears of its dues and it was contended that it was the duty of the Chairman to make arrangements for the realisation of taxes and therefore it was not the duty of the Committee to realise taxes. The power to impose taxes has been given to the Committee. The power to issue a writ of demand on failure of any person to pay any instalment of tax has also been given to the Committee under Section 20. It cannot therefore be said that it is not the duty of the Committee to see that the dues are realised.

10. It was then urged that it is not the duty of the committee to see that there are no partyfrictions in the Committee and consequently theexistence of any such party friction cannot be regarded as a breach of the duty imposed on the Committee. It is true that no specific duty 'has been cast upon the Committee to see that there are no party frictions in the Town Area Committee but if the result of the party frictions is that the Committee cannot properly function the Committee becomes incapable of performing any of its duties and it can be legitimately argued that if there is party friction in the Committee it may result in the non-performance of any of the duties imposed upon it. It cannot therefore be contended that the reasons given in the notification do not make out a case at all of persistent defaults in the performance of itsduties inasmuch as they have no relation to theduties imposed on the Committee.

11. In the result therefore there is no force in this petition and it is rejected with costs.


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