1. This is an application under Article 226 of the Constitution of India challenging the validity of the appointment of Tahsildar, Banapur, and his competency to exercise the functions of Banapur Grama Panchayat.
2. The facts are that Banapur Grama Pan-chayat functioned till the middle of the year 1954, when a fresh election was held in July under the provisions of the Orissa Grama Panchayat Act (Orissa Act XV of 1948) hereinafter referred to as 'the Act'. The newly elected body was to take charge on and from September 1, 1954. There having been certain grave irregularities in the conduct of the election, a petition under Article 226 of the Constitution was filed in this Court which was numbered as O. J. C. No. 86 of 1954.
That application succeeded in this Court and the election was set aside. No further election was, however, held; but the District Magistrate, Purl, purporting to act under Section 98 (f) of the Act read with Rule 248 of the Orissa Grama Panchayat Rules, appointed the Tahsildar of Banapur to exercise powers, of the Grama Panchayat. The Tahsildar thus acting as the Panchayat, without the previous sanction of the State Government as required under Section 44(2) of the Act imposed and collected the following taxes, viz.,
1. Panchayat tax.
2. Bicycle tax.
3. Bullock-cart tax.
4. Pee for selling kerosene and matches.
5. Fee for storing food-grains and chillie.
6. Tax for keeping machinery.
7. Market tax.
8. Fire-works license fee.
9. Brick kiln license fee.
It is this imposition that is now challenged as being against the provisions of Section 44(2) of the, Act as well as Article 265 of the Constitution. When the petitioners objected to pay the above taxes and fees, they were threatened with certain coercive processes. Accordingly, the petitioners have come up before this Court.
3. The Collector in his affidavit averred that after the election was set aside by this Court and the Grama Panchayat was dissolved, steps were being taken to hold the Grama Panchayat election under the Intensive Grama Panchayat scheme of reorganisation of Grama Sabhas according to the fresh delimitations which had been finalised shortly before. Since it was not possible to hold the election immediately, the Tahgil-dar. Banapur, was appointed as the proper authority for exercising the powers on behalf of the Grama Sabha under Section 98 (f) read with Rule 248 of of the Orissa Grama Panchayat Rules to the the day to day administration of the Grama Panchayat in the interim period between the dissolution and reconstitution.
He further averred that the Government had accorded previous sanction in G. O. No. 2194 L. S. G. dated 27-12-50 to levy taxes, tolls, fees etc. under Section 44(2) of the Act. The Government had also delegated its powers to the Board of Revenue in Notification No. 5395 L. S. G., dated 15-9-51 as amended by Government Notification No. 6497 L. S. G.. dated 20-11-51. Accordingly, the Board of Revenue accorded previous sanction to levy taxes, tolls, fees, etc. as specified in Section 44 (2), and license fees by Grama Panchayats under Sub-section (1) of Section 49(a) of the Act in his letter No. 781 (13) G. P. dated 21-2-55. Thus, according to the Collector, the Tahsildar of Banapur was the competent authority appointed by the District Magistrate in his order dated 25-7-55. Hence, it was submitted that the action taken by the Tahsildar is in order, in view of his appointment as the competent authority' of the Banapur Grama Pan-chayat, during the interim period.
4. Mr. A Das appearing on behalf of the petitioners challenged the validity of the appointment of the Tahsildar as the competent authority under Section 98 (f) of the Act. The original clauses (g) and (h) to Section 98 were re-lettered as clauses (f) and (g) by the Amending Act of 1951. Clauses (f) and (g) are in the following terms:
'(f) Appoint authorities in accordance with the prescribed rujes to exercise powers on behalf of the Grama Panchayat or Gram Sabha; and
(g) in case of neglect of duty or abuse of power, order dissolution and reconstitution or abolition of a Grama Panchayat.'
Mr. Das. therefore, contends that the District Magistrate is only competent to appoint an authority under Clause (f) of Section 98 in accordance with the prescribed rules. Now Clause (f) of Sub-section (1) of Section 98. as it stands after the amendment in 1951, authorises the District Magistrate to appoint a competent authority on behalf of the Grama Sabha or Grama Panchayat in accordance with the prescribed rules. The relevant prescribed rule is Rule 248 of the Orissa Grama Panchayats Rules, 1949, which reads as:
'During any interval between the dissolution and the reconstitution of a Grama Panchayat directed under Clause (h) of Section 98, all or any of the powers and duties of the Grama Panchayat and its Sarpanch and Naib Sarpanch may be exercised and discharged as far as may be and to such extent as the Registrar of Co-operative Societies may determine, by such person or persons as he may appoint in that behalf and any such person or persons so appointed shall receive payment for his services from the Gram Fund.'
The only change in the above rule that has been brought about by the Government by their notification No. 6023-LSG dated the 29th October 1951. was that the words 'District Magistrate' shall be substituted for the words 'Registrar of Co-operative Societies''. As may be seen from Rule 248 above, it refers to Clause (h) or Section 98, now Clause (R) which prescribes that the District Magistrate may order dissolution and reconstitution or abolition of a Grama Panchayat in case of neglect of duty or abuse of power. Thus, according to Rule 248, the District Magistrate may, during any interval between the dissolution and the reconstitution of a Grama Panchayat as un-der Clause (h), direct any such person or persons to exercise all or any of the powers and to such extent as he may determine. The rule, however, does not refer to Clause (f), but only authorises the District Magistrate to order dissolution etc, in case of neglect of duty or abuse of power as in old Clause (h) and direct an appointment on that behalf.
Here. In the instant case, the Banapur Grama Panchayat was neither dissolved, nor abolished nor reconstituted by an order of the District Magistrate, due to any neglect of duty or abuse of the powers by the Grama Panchayat. The election was set aside by an order of this Court due to serious irregularities in the conduct thereof. The Deputy Collector in charge, on 16-6-55 reported that after the expiry of the term of three years from the date of election of the Banapur and Jajarsing Gram Panchayats, the re-election of those two was due to be held on 1-6-53, but as the term of the office of members including the Sarpanch and Naih-Sarpanch was extended till 31-3-54 by the State Government, the re-election, of members including the Sarapanch and Naib-Sarpanch of these two Gram Panchayats was conducted from that date.
After re-election of members appeals agaist the election proceedings were preferred before the Honourable High Court who set aside the election of the Banapur Gram Panchayat. The State Government also set aside the election of the Jajarsingh Gram Panchayat. No fresh elections have yet been made. The Sub-divisional Officer reports that he was expecting to hold the general election of the intensive panchayats by the end of July, 1955, but in view of the D. O. letter of the Director of Gram Panchayat for finalising the master plan in consultation with the local M.l.aS. the general election will further be delayed. As these two panchayats are not function, ing since 1-4-54 and the day to day administration was at a stand-still, the Tahsildar, Banapur, and the Tahsildar, Khurda, may be appointed as special officers to exercise all the powers and duties of the Banapur and Jajarsingh Gram Panchayats respectively under Section 98(f) of the Act until the elected body is set up under the intensive scheme.
He however, sought the opinion of the Gov-ernment Pleader, Puri, as to who is the competent authority to appoint a person to exercise powers on behalf of the Gram Panchayat. The Government pleader opined that under Section 98(f); read with Rule 248, the District Magistrate is competent to appoint an authority for exercising the powers on behalf of the Gram Panchayat. Accordingly, the District Magistrate by his order dated 25-7-55. appointed the Tahsildar of Banapur as the competent authority. The authorities, it appears, misconceived the implications of Clauses (f) and (g) of Section 98 of the Act and accordingly committed an illegality in the appointment in question. Clause (f) authorises the appointment in general, whereas Clause (g) authorises an appointment only in case of neglect of duty or abuse of power.
Thus the appointment of a competent autho-rity under Clause (f) can only be made in accordance with the prescribed rules. As I have shown above, there is no prescribed rule with reference to Clause (f). The only rule is Rule 248, which relates to old Clause (h). Thus, the District Magistrate who is authorised to direct an appointment under conditions as in Clause (h) above, without applying his mind, has clearly acted against the provisions of the Act. and the prescribed rules when he purported to have acted under Section 98(f) read with Rule 248. The learned Advocate-General appearing on be-half of the State, drew our attention to Section 8 of the Amending Act of 1956, (Orissa Act X of 1956). Clause (f) in Section 8 of the said Amending Act is as follows:
'Whenever due to any defect, Irregularity, or illegality in the constitution of the Gram Panchayat or by reason of any Judgment, decree or order of any Court the said Gram Panchayat is unable to exercise its powers, or discharge its duties or perform its functions in accordance with the provisions of this Act, the Collector may appoint authorities in the manner prescribed to act on behalf of the Gram Panchayat so long as its disability lasts.' and Clause (G) says:
'Subject to the rules made in that behalf, in the case of neglect of duty or abuse of powers, order dissolution and reconstitution, or abolition of a Grama Panchayat.' This Act came into force on 13-5-56. If it were given the retrospective effect, certainly, in terms, it would have validated the appointment of the Tahsildar as a 'competent authority'. But unfortunately, the amending Act X of 1956, his not been given any retrospective effect by the Legislature, Hence, in my opinion Section 8 of the said Act has no application whatsoever to the present case. Accordingly, we hold that the District Magistrate had no power under Clause (f) of Section 98 of the Act to appoint the Tahsildar of Bsnapur to exercise the functions of the Banapur Gram Panchayat pending the re-election. The very appointment beings invalid, he had not the authority of law either to levy or collect the taxes and fees as enumerated above.
5. Thus the contentions raised by Mr. Das succeed and the Writ is bound to be issued in this ease.
6. The only other question that remains to be considered is the petitioners' further prayer for a refund of the taxes and fees paid between September 1, 1954. and the filing of this application, that is, 21-2-56. The appointment was made under a mistaken advice of the Government pleader, Puri, and the taxes and fees were collected in good faith and were utilised for the good of the people in general residing within the ambit of the Banapur Grama Sabha. Hence, the amounts collected having been spent for public purposes and the petitioners having reaped the benefit thereof, it will not be desirable to order the refund of the taxes collected. Accordingly, the prayer for refund is refused.
7. The petitioners having succeeded a Writ of Mandamus will not be issued directing the opposite parties neither to demand nor to collect any money from the members of the Banapur Grama Sabha as taxes or fees on the various heads as mentioned above till after the recon ti-tution of the Gram Panchayat or the appointment of a competent authority in accordance with law. The petitioners are entitled to the hearing fee which is assessed at Rs. 100/-.
8. I agree.