1. This is an application under Article 226 of the Constitution by Raghunath Rai against the State of Rajasthan, the Director of Local Bodies, Jaipur, and Gauri Shanker Khadaria.
2. The case of the applicant briefly is this. The applicant is the Chairman of the Municipal Board, Nohar. Gauri Shanker, opposite party, is a member of that board. It is said that taxes were due as arrears and had not been paid by the city fathers themselves. Consequently, a resolution was passed by the Municipal Board to the effect that a list of arrears due from the city fathers should be prepared.
A list was accordingly prepared and in that list a sum of Rs. 10/- was shown as due from Gauri Shanker, opposite party. This list was delivered to each member including Gauri Shanker, opposite party, in January, 1956. It is not in dispute that Gauri Shanker had received this list which showed that he owed Rs. 10/- as arrears.
It is also not in dispute that he neither paid the amount nor raised an objection to the effect that this amount was not due from him. Consequently, on 14th March, 1956, the Chairman sent a special notice to Gauri Shanker in accordance with Section 12 (3) (d) of the Raja-sthan Town Municipalities Act (No. 23 of 1951) (hereinafter called the Act). It is stated that this notice was tendered by a municipal peon on 15th March, 1956, to Gauri Shanker at his shop. Gauri Shanker read the notice but refused to take it.
After reading it he handed it back to the peon, who thereafter pasted a copy of it on the shop of Gauri Shanker and made a report accordingly. No payment was made within 3 months of the service of this notice as required by Section 12 (3) (d) of the Act and thereupon the applicant served a notice on Gauri Shanker in September, 1956, that his seat would be deemed to be vacant.
Gauri Shanker immediately applied to Government under Section 12 (5) of the Act and the matter was considered by the Director of Local Bodies as powers under Section 12 (5) of the Act had been delegated to the Director by the Government. The Director came to the conclusion on 22nd of October, 1956, that though the notice was taken to Gauri Shanker's shop by the peon and had been read by him and refused and then pasted on his shop, this was not sufficient service within the meaning of Section 164. as according to the Director the peon did not follow the procedure given in Section 164 (1) (d) of the Act. He, therefore, held that Gauri Shanker had not incurred any disqualification and allowed Gauri Shanker to continue as member of the Board.
3. Thereafter the present application has been made to this Court.
4. The applicant's contention is that there is an error of law apparent on the face of the record in the Director's order of 22nd October, 1956, and that Section 164 (1) (d) is clearly inapplicable and the Director should have applied Section 164 (1) (a) of the Act. If he had done so he would have found that the service of special notice was made on Gauri Shanker as provided by Section 164 (1) (a).
5. The application has been opposed on behalf of Gauri Shanker. He has supported the view taken by the Director. In addition, it has been urged on his behalf that the applicant has a remedy by way of approaching the Government under Section 210 oi the Act and therefore, this Court should not intervene at this stage.
6. We shall first consider whether the applicant has any remedy under Section 210. That section lays down, that the Government may for the purpose of satisfying itself as to the correctness etc. of any order passed by a Divisional Commissioner, Collector or any other officer appointed or authorised by the Government under the Act call for connected records and may in doing so direct that pending the examination of the records such order be held in abeyance.
On examining the records the Government may reverse or modify the order passed by a Divisional Commissioner, Collector or any other officer appointed or authorised by it. The question, however, is whether it was open to the Government to act under Section 210 where an order is passed by an officer to whom powers of the Government were delegated under Section 207.
We have given our earnest consideration to this point and have come to the conclusion that Section 210 does not authorise the Government to revise orders passed by an officer to whom, its powers are delegated under Section 207. Government can delegate its powers under Section 207 to any officer subordinate to it; but the officer to whom such powers are delegated has all the powers of Government and must be treated fcr all practical purposes as the Government.
Section 210 authorises the Government to revise orders of only three kinds of officers, namely, (1) the Divisional Commissioner, (2) Collector and (3) any other officer appointed or authorised by the Government under the Act. Now if we look at the various provisions of the Act, for example, Sections 193, 194, 195 and so on we find the words 'or any other officer appointed or authorised by the Government under this Act' appearing in those sections.
Obviously, therefore, Section 210 gives power to Government to revise the order of a Divisional Commissioner or Collector or of such officer as may be appointed or authorised by the Government to do the work which the Act intended the Commissioner or the Collector to do. Section 207 does not talk of such officer as may be appointed or authorised by the Government.
It lays down that the Government may delegate all or any of its powers under the Act to any officer subordinate to it. If it was the intention of the legislature that Government should also revise orders passed by an officer to whom its powers were delegated this should have been made clear by including the officer to whom the powers of Government are delegated in Section 210. We are of opinion that such an officer is not included in the words 'any other officer appointed or authorised by the Government under this Act'. The applicant, therefore, could not approach the Government to correct the order of the Director of Local Bodies.
7. Next question is whether there is an error of law apparent on the face of the record in the order of the Director with respect to the interpretation of Section 164 (1) (d) of the Act. The Director has held that there was not sufficient service of the special notice as required by Section 164, because the provision of Section 164 (1) (d) had not been complied with.
It is, however, patent if one looks at Section 164 (1) (d) that it comes into operation only if none of the means mentioned in Clauses (a), (b) and (c) of Section 164 (1) is applicable. The Director did not direct his attention to the question whether the service had been affected by the peon in any of the manners provided in Clauses (a), (b) and (c).
It is not in dispute that Clauses (b) and (c) did not apply to this case; but the Director should have directed himself to consider whether Clause (a) applied. Clause (a) is in these terms 'by giving or tendering such notice or bill to the person to whom it is addressed. So lar as 'giving' is concerned it may be accepted that 'giving' of the notice only takes place when the person to whom it is to be given ac-eepts it.
That is the usual form of service prescribed in the Civil Procedure Code also. But Clause (a) also talks of 'tendering' of the notice and it is the meaning of this word which has to be interpreted and which the Director completely overlooked in his order. 'Tender' means to offer or to present for acceptance.
Therefore a notice is tendered when the peon offers it for acceptance to the person to whom it is addressed. As soon as the peon offers the notice to the person to whom it is addressed the tender is complete. If that person takes it the 'giving' is complete. If he refuses to take it the peon's part of the work is over, namely, he has tendered it to the person to whom it is addressed.
Under Section 164 (1) (a) service can be effected by giving or tendering the notice or bill to the person to whom it is addressed. In this case, the peon had tendered the notice to Gauri Shanker who had refused to take it. Clause (a) does not prescribe any further duty on the peon; but probably people are used to take recourse to the procedure laid down in the Civil Procedure Code. That is why the peon on the refusal of Gauri Shanker pasted one copy of the notice on the shop of Gauri Shanker.
This was not required by law; but merely an additional precaution was taken by the peon. The Director, therefore, in so far as he did not consider whether the special notice hat been served as provided under Section 164 (1) (a) committed an error of law which is apparent on the face of the record. He has held that the peon did go with the notice to Gauri Shanker and presented it to him for acceptance. Gauri Shanker read the notice; but refused to accept it and returned it to the peon. Thereafter, the peon pasted it on Gauri Shanker's shop. On those facts the Director should have held that the notice was tendered to Gauri Shanker as required by Section 164 (1) (a) and was served.
8. We are, therefore, of opinion that the order of the Director, dated 22nd October 1956, must be set aside. However, there is another point which has to be gone into by him now. We, therefore, allow the application, set aside the order of tne Director dated 22-10-56 andsend the case back for decision on the otherpoint involved, namely, whether there wereany arrears of tax due from Gauri Shanker.We order parties to bear their own costs in thispetition.