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Kalyan Chand Vs. Minister, Local Self-govt. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberWrit Appln. No. 171 of 1953
Judge
Reported inAIR1954Raj166
ActsConstitution of India - Article 166(2); Jaipur District Boards Act - Sections 4A, 4A(3), 51 and 52; Jaipur District Boards (Amendment) Act, 1950;
AppellantKalyan Chand
RespondentMinister, Local Self-govt.
Appellant Advocate D.M. Bhandari, Adv.
Respondent Advocate K.S. Hajela, Adv. General
DispositionPetition dismissed
Excerpt:
.....4a. section 51 is therefore applicable to the cases of the elected boards as well as to the provisional boards. in our opinion, the provision of section 4a(3) is independent of section 51. the provision of section 4a(3) would be superfluous if it is taken to be qualified by section 51. when section 51 was already there, there could not have been any good reason for the legislature to have added section 4a(3) if it had been intended that it was to be qualified in its application by the provisions mentioned in section 51. the argument that section 4a(3) should be regarded as a provision made by the legislature ex abundanti cautela does not appear to be of much force. 13. lastly we may deal with the argument of the petitioner that section 51 is a special provision and section 4a(3)..........nominated members'.(1) pending the formation of a board under section 4, the government may from time to time, by notification in the rajasthan gazette, provisionally constitute a board consisting wholly of such number of members nominated by the government as it may specify in that behalf.(2) the member of a board so constituted shall hold office for a period of two years:provided that they shall vacate office earlier upon formation of a board under section 4.(3) notwithstanding anything contained in sub-section (2) the government shall have power at any time to dissolve a board constituted under this section and upon such dissolution the same consequences shall follow as are specified in section 52'. 8. section 51 of the jaipur district boards act is as follows:'if at any time it.....
Judgment:

Ranawat, J.

1. This is an application under Article 226 of the Constitution of India by one Kalyan Chand against the Minister, Local Self-Government; Secretary to the Government, Local Self-Government Department; Director of Local Bodies, Rajasthan, Ex-Officio Chairman of the District Board, Jaipur; and District Board, Jaipur.

2. The case of the petitioner is that he was nominated a member of the provisional District Board, Jaipur, in August 1951 along with other members of the said Board, but subsequently the Minister in charge of the Local Self-Government Department on 10-4-1953 dissolved the provisional Board, of which the petitioner was a member and reconstituted it later on. The action of the Minister in charge in dissolving the Board was, it is said, mala fide.

Three circumstances are mentioned in this behalf:--

1. that Kalyan Vidyarthi, who is the brother-in-law of the Minister-in-charge of the Local Self-Government made an application to the Board on 2-6-1953 for a grant of Rs. 20,000/- as an aid for starting an institution for the backward classes but the Board did not accept his request.

2. that in the matter of making appointments on the posts of teachers and Vaidyas the Board did not select more than three persons from Dausa constituency and in the cases of others who were not so selected the said Minister must have been interested as he came from that very constituency.

3. that for a considerable length of time in spite of persistent requests of the members no meeting of the Board could be held on account of the fact that the said Minister had orally instructed the Director of the Local Self-Government Department not to hold any meetings.

3. The Minister in charge of the Local Self-Government it is stated had no authority under the law to order dissolution of the District Board and his order is therefore ultra vires. The Board could not be dissolved by the Government otherwise than in accordance with the provisions of Section 51 of the Jaipur District Boards Act, which were not complied with in so far as no notice was given to the Board before its dissolution containing the grounds on which such an action had been contemplated. It was therefore prayed that by a writ of mandamus or prohibition the respondents 1 to 3 be ordered not to enforce the order of dissolution of the Board and to allow the dissolved Board to function till the expiry of its prescribed term or till it was dissolved or superseded in accordance with law and that the order of dissolution be quashed.

4. A-reply has been filed on behalf of the Secretary, District Board, Jaipur, in which it has been denied that the order dissolving the said Board was made by the Minister in charge, Local Self-Government Department, and it has been pleaded that the order of dissolution was made by the Government under Section 4A (3) of the Jaipur District Boards (Amendment) Act.

It has also been denied that the order of dissolution was made on account of mala fides. The fact that Kalyanchand made an application for grant of Rs. 20,000/- to the Board has been denied but it has been stated in this connection that Kalyanchand applied for some grant in aid in connection with the starting of a Harijan institution stating that his requirements were of an amount of Rs. 16,000/-. Kalyan Chand, it is further said, is the brother-in-law of the Minister in charge of the Local Self-Government.

It is denied that the Minister in charge of the Local Self-Government was interested in the appointment of teachers and vaidyas and it is also denied that the said Minister ever instructed the Director of the Local Self-Government Department not to hold any meetings of the Board. It is also pleaded that the Government had authority to dissolve the provisional Board under Section 4A (3) without acting under Section 51 of the Jaipur District Boards Act.

5. It might be noted here that the three circumstances which have been mentioned by the petitioner on the point of mala fide are not sufficient by themselves to warrant an inference against the Minister in charge of the Local Self-Government Department regarding his mala fides. Kalyan Vidyarthi might have applied to the Board for grant in aid and his application might have been kept pending for a considerable length of time but from this it cannot be presumed that the order relating to dissolution was made on account of this circumstance.

Further, it cannot be assumed that the said Minister was interested in certain candidates from Dausa in the matter of their appointment as teachers and vaidyas under the District Board. There is also no reason to believe that the averment of the petitioner that no meeting of the Board was held for a long time because of some oral directions of the Minister for the Local Self-Government is correct. An affidavit has been filed by the opposite side controverting this statement of fact. We therefore hold that there is no force in the contention of the petitioner on the poiat of mala fides.

6. Prom the reply of the opposite party and from a perusal of the order of dissolution, a copy of which has been placed on the record of this case, it appears that the order was made by theGovernment. That order has been authenticated under the signatures of the Secretary, Local Sell-Government Department, and it purports to have been made by an order of the Rajpramukh. The form of authentication of the said order is therefore proper and in accordance with the provisions of Article 166(2) of the Constitution of India and the Rules made thereunder, it cannot be called in question on the ground that it is not an order made by the Rajpramukh. The averment of the petitioner that the order of dissolution was made by the Minister cannot therefore be believed to be true. The objection that the order of dissolution not having been made by the Government and having been so made by the Minister in charge of the Local Self-Government has therefore no basis and the petitioner cannot succeed on this ground.

7. Section 4A as amended by the Jaipur District Boards Act is as follows:

'4A, 'Provisional Boards consisting of nominated members'.

(1) Pending the formation of a Board under Section 4, the Government may from time to time, by notification in the Rajasthan Gazette, provisionally constitute a Board consisting wholly of such number of members nominated by the Government as it may specify in that behalf.

(2) The member of a Board so constituted shall hold office for a period of two years:

Provided that they shall vacate office earlier upon formation of a Board under Section 4.

(3) Notwithstanding anything contained in Sub-section (2) the Government shall have power at any time to dissolve a Board constituted under this section and upon such dissolution the same consequences shall follow as are specified in Section 52'.

8. Section 51 of the Jaipur District Boards Act is as follows:

'If at any time it appears to the Government that a Board persists in making default in the performance of any duty or duties imposed on it by this Act or in exceeding or abusing its powers the Government may (after calling for an explanation from the Board and considering any objection made by it to action being taken under this section) by an order published in the Jaipur Gazette, either dissolve the Board or supersede it for a period to be specified in the order.'

9. It is contended on behalf of the petitioner that dissolution of a District Board cannot be ordered by the Government unless the procedure specified in Section 51 is followed and unless the circumstances mentioned therein exist. The case of the opposite side is that the powers under Section 4A(3): are over and above the powers of the Government under Section 51 of the Jaipur District Boards Act and it is open to the Government to dissolve a provisional District Board otherwise than under Section 51.

The argument of the learned counsel of the petitioner is that the two Sections 4A and 51 should be read together and as Section 4A does not lay down any procedure or the circumstance under which dissolution is to be made these provisions should be borrowed from Section 51 in order to enable the Government to make an order of dissolution even under Section 4A of the Act. Special emphasis has been laid on the words 'notwithstanding anything contained in Sub-section (2)' appearing in Section 4A(S) and it has been urged that these words should be read so as to make Sub-section (3) a proviso to Sub-section (2) of Section 4A, and the provision of sub-s, (3) should therefore be not read as overriding the provisions of Section 51 of the Act. As Section 51 is a later section it is urged it should be given effect to in supersession to the provisions of Section 4A(3), in ' case there be any inconsistency between the two sections. The provision of Section 4A(3) should be read as ex abundanti cautela.

10. In reply to this argument the learned Advocate General has referred to the history of the amendment and it has been urged in this connection that the provision of Section 51 was already there in the Act before the amendment was put in and the legislature by placing the amendment should be understood to have put in some change in law when they passed the Amendment Act. When provisional Boards were introduced for the first time by the Amendment Act of 1948 and when elected Boards could not come into existence for some time the legislature passed the Amendment Act of 1950 empowering the Government from time to time by notification in the Rajasthan Gazette to constitute provisional Boards consisting wholly of nominated members whose term of office was ordinarily to be of two years unless an elected Board was formed earlier.

In spite of the fixing of the term of two years for the membership of the provisional Board the Amendment Act further provided that the Government shall have power at any time to dissolve a Board constituted under Section 4A. The powers, it is contended, under Section 4A(3) are in addition to the powers of the Government under Section 51. Special attention has been invited to the words 'at any time' and the 'same consequences shall follow as are specified in Section 52' in support of this view.

It is said the provisions of Section 4A(3) would be redundant if the powers of dissolution were to be regarded as limited by the provisions of Section 51 of the Act, and from the term 'at any time' it should be inferred that the power under Section 4A(3) was not limited to the occasions specified in Section 51. Had it not been, it is further urged, the intention of the legislature that Section 4A(3) was to be independent of Section 51 the term 'the same consequences shall follow as are specified in Section 52' would, not have appeared in Section 4A(3).

11. We have carefully considered the arguments of the learned counsel of both the sides. We do not find that there is any inconsistency in the provisions of Section 4A(3) and Section 51. We would therefore not discuss the cases which have been cited by both the sides regarding rules of interpretation of statutes where there appears an inconsistency between the two provisions of the same or different statutes. For the same reason the argument that the later provision should be preferred to the former one in the same statute in case of inconsistency between the two has also no application to this case. Section 51 makes a provision regarding dissolution of a Board under certain given circumstance and it also lays down certain procedure to be followed in that event. A provisional Board is as good as an elected Board for purposes of Section 51 but it is also subject to the provisions of Section 4A. Section 51 is therefore applicable to the cases of the elected Boards as well as to the provisional Boards. On this point there is no disagreement between both the sides. The point at issue is whether Section 4A(3) is qualified, by the provisions of Section 51 or is indeuendent of it. In our opinion, the provision of Section 4A(3) is independent of Section 51. The provision of Section 4A(3) would be superfluous if it is taken to be qualified by Section 51. When Section 51 was already there, there could not have been any good reason for the legislature to have added Section 4A(3) if it had been intended that it was to be qualified in its application by the provisions mentioned in Section 51. The argument that Section 4A(3) should be regarded as a provision made by the legislature ex abundanti cautela does not appear to be of much force. The term 'at any time' appearing in Section 4A(3) shows that the power under section 4A(3) is not limited to the occasions specified in Section 51 Furthermore, the argument of the learned Advocate General on the basis of the words 'the same consequences shall follow as are specified in Section 52' could not be met by the other side. Had it been the intention of the legislature that Section 4A(3) was to be limited in its scope by the provision of Section 51 there was no necessity for adding the terms referred to above. These words go to show that the powers under Section 4A(3) were to be exercised independency of Section 51 and the consequences of the exercise of such power under Section 4A(3) would be the same as laid down in Section 52. The position therefore is that it is open to the Government to dissolve a Board, whether it is provisional or elected, under Section 51 and if the Board is a provisional Board it is further open to the Government to dissolve it under Section 4A(3) at any time for any purposes not covered by Section 51. The learned Advocate General has pointed out that one of the purposes of the Amendment Act of 1950 was to authorise the Government to reconstitute District Boards or to readjust the boundaries and areas thereto. For this purpose it became necessary to authorise the Government to dissolve the Boards, and to reconstitute them at any time for reasons other than those specified in Section 51. From the language of Section 4A(3) it is evident that the legislature invested power in the Government to dissolve the District Boards constituted provisionally under section 4A at any time for reasons other than those mentioned in Section 51.

12. It was argued on behalf of the petitioner that there was no point in fixing a term of two years by Section 4A(2) if it had been left to the discretion of the Government to dissolve the Board at any time. It may be noted in this connection that Section 4A(3) is a proviso to Section 4A(2) and it cannot therefore be understood that because a term of two years has been specified in Section 4A(2) it would not be open to the Government to dissolve the Board before the expiry of the said term. The words 'notwithstanding anything contained in Sub-section (2)' strike at the very root of this argument.

13. Lastly we may deal with the argument of the petitioner that Section 51 is a special provision and Section 4A(3) is a general one, and on the principle of 'Generalia specialibus non derogant' Section 51 should be taken to override the provisions of Section 4A(3). The learned Advocate General has met this argument by saying that Section 51 is general, because that applies to provisional as well as elected Boards and Section 4A(3) is special because it applies to provisional Boards only. He has therefore invoked the same principle in his favour. We would note that Section 4A(3) should be regarded as a special provision in so far as the provisional Boards are concerned. As regards the circumstance under which a Board can be dissolved and the procedure for the dissolution under those circumstances Section 51 cannot be regarded as containing any special provision in respect of any such general provision in Section 4A(3) because the provision of Section 4A(3) only relates to the Board constituted under Section 4A and it does not apply to the cases of elected Boards whereas Section 51 applies to both the kinds of Boards alike. The principle 'generalia specialibus non derogant' therefore cannot be invoked in thepresent case, because Section 51 does not cover the cases which are intended to be governed by Section 4A(3>. In other words, scope of both the sections is not the same & they are meant to apply to different sets of circumstances.

Section 51 as has already been discussed above applies both to provisional as well as to elected Boards and under that section dissolution can be ordered only when the circumstances specified therein exist. Whereas Section 4A(3) applies to the provisional Boards and it has no application whatsoever to the case of an elected Board. No circumstances are specified in Section 4A(3) which should exist to call for an action under that provision of law. It is under that section open at any time to the Government to make an order of dissolution of the Board and when such an order is made the same consequences as laid down in Section 52 would ensue. ,

14. We find that the petitioner has failed to make a good case for the exercise of this Court's extraordinary powers under Article 226 of the Constitution of India,

15. We would therefore dismiss the applicationwith costs. There will be only one set of costs asall the four opposite parties have put a jointreply.


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