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D. Rajiah Vs. Inspector of Municipal Councils and Local Boards, Madras - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 139 of 1954
Judge
Reported inAIR1955Mad584
ActsConstitution of India - Article 226; Madras Village Panchayats Act, 1950 - Sections 21, 47(1), 47(3) and 47(4)
AppellantD. Rajiah
Respondentinspector of Municipal Councils and Local Boards, Madras
Appellant AdvocateR.M. Seshadri, Adv.
Respondent AdvocateV. Srinivasan, Adv. for ;Special Govt. Pleader
DispositionAppeal allowed
Cases ReferredSons Ltd. v. Minister of Health
Excerpt:
.....the question whether the minister, after such an enquiry has been held and after a report has been made, can then proceed, i am not dealing with the facts for the moment -to hear 'ex parte' statements from one side or the other in the absence of those whose obvious desire it would be to controvert them is precisely similar to the question whether, after holding a public local inquiry or after having caused a public local enquiry to be held of a quasi-judicial character, the minister can then hold a private enquiry of his own to which' one party only is admitted. they can obtain information in any way they think best, always giving a fair opportunity tp those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. 9. we are..........authority.in regard to such bodies it has been laid down by the house of lords in -- 'local government board v. arlidge', 1915 ac 120 (b), that the decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. in -- 'errington v. minister of health', 1935 1 kb 249 (c), a local authority had made a clearance order and had submitted it to the minister of health for confirmation. there was a public enquiry conducted by the inspector appointed by the minister of health at which the objectors took part.but after this public enquiry was completed and the report submitted, the minister, had a private enquiry made without, giving the owners of the property an opportunity of arguing contra and acting on this evidence.....
Judgment:

Rajagopala Ayyangar, J.

1. This is an appeal against the judgment of Rajagopalan J. dismissing W. P. No. 660 of 1954.

The appellant was the President of the Kivalur Panchayat Board, Negapatam taluk, and was elected to this office in March 1952. Under Section 21,Madras Village Panchayats Act, 10 of 1950, he would hold this office for a term of 3 years. But this was subject to the contingency of his being removed from office under the provisions of Section 47 of the said Act. The relevant portions of Section 47 which enable this removal to be effected by the Inspector of Municipal Councils and Local Boards run in these terms:

'47(1): The Inspector may, by notification and with effect from a date to be specified therein, remove any president or vice-president, who, in his opinion, wilfully omits or refuses to carry out or disobeys the provisions of this Act or any rules, by-laws, regulations or lawful orders issued thereunder, or abuses the power vested in him.

(2) The Inspector may, by notification and with effect from a date to be specified therein, remove any member who, in his opinion, is guilty of any misconduct in the discharge of his duties.

(3) The Inspector shall, when he proposes to take action under Sub-section (1) or (2), give the President, or vice-president or member concerned an, opportunity for explanation, and the notification issued shall contain a statement of the reasons for the action taken.

(4) The Government shall have powers to cancel any notification issued under Sub-section (1) or (2) and may, pending a decision on the question of such cancellation, postpone the date specified in such notification.'

In or about the middle of June 1954, the appellant received a communication dated 1-6-1954 from the Inspector of Municipal Councils and Local Boards setting out seven items of misconduct on the part of the appellant and calling upon him under Section 47(3) of the Act to show cause within a week from the date of the receipt of that notice 'why he should not be removed under Section 47(1) from the office of President.

2. The appellant sent a reply answering seriatim these charges and submitted his explanation on 8-6-1954 within the time limited through the District Panchayat Officer, Nagapattinam, and the Regional Inspector of Local Boards, Southern Range, Tiruchirapalli', as directed in the memo, dated l-6-1954. Subsequent to the receipt of this explanation, the District Panchayat Officer wrote to him on 27-6-1954 that he would visit the panchayat office on 1-7--1954 for verification of the records in his office in connection with the notice already issued to him by the Inspector of Municipal Councils and Local Boards.

The inspection took place but the appellant was not kept informed of anything that had been noted against him. Subsequently on 12-10-1954 he received an order from the Inspector of Municipal Councils and Local Boards stating that he had been removed from the office of President with effect from 20-10-1934 and a notification was published in the Official Gazette setting this out.

3. The appellant thereupon filed W.P. No. 660 of 1954 to quash the order of the Inspector removing him from his office. The main ground upon which a writ was prayed for was that Section 47 (S) was violated and that contrary to the terms of that section and the principles of natural justice he was not given any opportunity to know what exactly was the evidence against him which led to the order of removal. The learned Judge however without going into this question dismissed the writ petition on the ground that under Section 47(4) ofShe Act the Government-had power to cancel the present notification and that the existence of this alternative remedy precluded the appellant from seeking the aid of the Court at that stage. It is from this order of dismissal that the petitioner has filed the present appeal.

4. The first contention urged on behalf of the appellant is that the learned Judge was wrong in dismissing the petition on the ground of the existence of an alternative remedy. There can be no doubt that the general rule is that this Court does not interfere by the issue of a writ of certiorari or grant such extraordinary remedies when there is another convenient and adequate legal remedy open to a petitioner. We agree with the learned Judge that normally the position is as held by him. But in the present case, there are special facts which have persuaded us to hold that the alternative remedy is really illusory.

In the affidavit filed in this Court by the Inspector of Municipal Councils and Local Boards, it is admitted that action under Section 47 was taken against the appellant only after prior consultation with the Government. In para 5 of the affidavit, dated 10-11-1954 the order of the Government dated 5-5-1954 as a result of which the notice was issued to the appellant to show cause why he should not be removed from the office of the president is set out.

It is clear from the contents of that order that the entire material, on the basis of which action was taken against the appellant, was before the Government and it was only after satisfying themselves about the propriety of the removal that the direction to the Inspector was made. In view of this we are satisfied that the petition of appellant ought not to be rejected on the ground that he should seek his remedy at the hands of Government. Before leaving this part pf the case, it is only necessary to add that we consider it not proper that the Government should be consulted or they should even express 'prima facie' views, up on questions which would ultimately come up before them in a quasi-judicial capacity in appeal or revision after action had been taken.

5. Learned counsel for the appellant so light to use the contents of this paragraph and the order of the Government recited there for the purpose of raising a contention that the order passed on 12-10.-1954 should be taken to have been passed not by the Inspector, as it purports to be but really by the direction of the Government and that, therefore, it should he treated as a nullity. For, this, reliance was placed on the decision of the Supreme Court in -- 'Commissioner of Police, Bombay v. Gordhandas Bhanji', : [1952]1SCR135 (A) for the position that where a statute names an authority and vests it with discretion to pass an order, an order passed by or at the instance of another functionary could not be treated as complying with the requirements of the statute.

This argument is not sustainable on the facts of the present case because the order of Government was one which was passed before the appellant was notified of the charges and at a time when discussions were proceeding as to whether a 'prima facie' case had been made out for calling upon 'the appellant to show cause why he should not be removed from office. The participation of the Government at this stage does not make the order passed by the Inspector of Municipal Councils and Local Boards after the explanation of the appellant was received, one passed by the Government or at their direction.

6. The next contention urged on behalf of the appellant is that there is a substantial want ofcompliance with the terms of Section 47(3) and also that the principles of natural justice have been violated. To appreciate this point, it is necessary to set out a few facts: Long before any charge was formulated, the District Panchayat Officer at the instance of the Inspector of Municipal Councils and Local Boards conducted an enquiry on11-1-1954 at the Panchayat Office. The appellant also participated in the enquiry in the sense of being present when it was conducted.

The results of this enquiry were embodied in a report by the District Panchayat Officer to the Inspector of Municipal Councils and Local Boards. This report disclosed a 'prima facie' case against the appellant of various irregularities. It was at this stage that a reference was made to the Government who directed the Inspector to proceed to take action under Section 47 of the Act for the removal of the appellant. After receiving the communication from the Government in May 1954, the Inspector formulated the charges by the notice dated 1-6-1954, already referred to.

As stated above, the appellant submitted his explanation on 8-6-1954. Subsequent to this date, there was no enquiry except an 'ex parte' inspection by the District Panchayat Officer; and the next thing that the appellant heard about this matter was the order for his removal dated12-10-1954. It is in these circumstances that the appellant complains of a violation of Section 47(3) and the principles of natural justice. Under the statute the President has to be given an opportunity for explanation. It pre-supposes that the officer would be informed of the gravamen of the charge in respect of each matter and an opportunity to explain the matters appearing in the evidence against him.

The section also requires that the order of removal should state the reasons which impel the Inspector to take such action. In the preamble to the order of removal dated 12-10-1954, the report from the District Panchayat Officer, dated 6-7-1954, and the 'report from the Regional Inspector of Municipal Councils and Local Boards, Southern Range, dated 23-8-1954, are recited as having been read before it was issued.

It will be seen that both these are after the explanation offered by the appellant and if these two officers conducted any enquiry the result of which they reported, that, was certainly held behind the back of the appellant. There are indications 'in the order of removal itself that the Inspector has acted upon matters elicited at some enquiry or investigation of which the appellant had no notice. Thus in respect of charge No. VI, it is stated:

'Corrections and substitutions of figures regarding case of labour, earth work etc., resulting in increase in the amount have been reported by the District Panchayat Officer. The corrections have not been attested by the President and the members have denied knowledge of the corrections. The charge regarding the corrections is proved.' The charge in this respect was that there were too many corrections in the amount in resolution No. 45 of the Panchayat. It will he seen therefore that there must have been some enquiry after the notice to the appellant to show cause but behind his back. Similarly in respect of charge No. VII, which was that the President sold his own bandy to the Panchayat for conservancy purposes in the name of one Sri Ratnam Pillai, the order recites that the District Panchayat Officer, Nagapattinam, who enquired into the matter has reported that Ratnam Pillai sold, the bandy to the President for Rs. 100 and that the President subsequently soldit to, the Panchayat for Rs. 150 and the President got a receipt from Ratnam Pillai to cover the transaction with the Panchayat.

This paragraph lends itself to a similar comment as in regard to the preceding charge. Morethan all these, in respect of charge No. V, theorder states, '

'It is reported that on 1-7-1954, the President paid in person to the owner of the site, rent for the period from October 1953 to June 1954 but did not get the lease deed executed even then.' It clearly shows that matters which came up long after the appellant was called on to explain have been taken into consideration for the purpose of removing the appellant. We therefore hold that there has been a substantial failure to comply with the terms of Section 47(3)..

7. Furthermore the appellant held a Statutory office and under the terms of Section 21 was entitled to hold it for a term of three years. If he is to be removed from such office, the terms of that statute prescribing the procedure for removal should be scrupulously followed. If there is any substantial departure from the mode of procedure laid down and injury results to the incumbent, the order is liable to be set aside as being not in compliancc with the statute. Besides there can be no doubt whatsoever that the Inspector of Municipal Councils and Local Boards when passing an order for removal under Section 47 is functioning as a quasi-judicial authority.

In regard to such bodies it has been laid down by the House of Lords in -- 'Local Government Board v. Arlidge', 1915 AC 120 (B), that the decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. In -- 'Errington v. Minister of Health', 1935 1 KB 249 (C), a local authority had made a clearance order and had submitted it to the Minister of Health for confirmation. There was a public enquiry conducted by the Inspector appointed by the Minister of Health at which the objectors took part.

But after this public enquiry was completed and the report submitted, the Minister, had a private enquiry made without, giving the owners of the property an opportunity of arguing contra and acting on this evidence the Minister confirmed the clearance order. An application was taker out for the issue of writs of certiorari and prohibition and Swift J. dismissed them on the ground that the Minister in confirming the order was acting merely in an administrative capacity.

The petitioner took the matter on appeal to the Court of Appeal and the Court unanimously set aside the judgment of Swift J. Maugham L, J, stated the law thus;

'The Solicitor General does not seek' to object to the view that that public enquiry is of the nature of a quasi-judicial inquiry in which, although the rules of procedure of a Court of justice may not bs followed, the ordinary principles of fair play have to be observed. As I think, the question whether the Minister, after such an enquiry has been held and after a report has been made, can then proceed, -- I am not dealing with the facts for the moment -- to hear 'ex parte' statements from one side or the other in the absence of those whose obvious desire it would be to controvert them is precisely similar to the question whether, after holding a public local inquiry or after having caused a public local enquiry to be held of a quasi-judicial character, the Minister can then hold a private enquiry of his own to which' one party only is admitted.'

8. the learned Lord Justice held that the statute di3 not authorise such a procedure andquashed the order for confirmation. Roche L.J.put the matter thus:

'.... that the inquiry which was required to be in public, and which, according to the admission of the Solicitor General it is conceded should be such as to give effect to the elementary principle of hearing bath sides, was continued and resumed in private and when so resumed and continued was held with audience to one side alone. That, in my judgment, is manifestly a breach of the requirements of para 4 of Schedule 1 to the Housing Act, 1930.'

To a similar effect are the observations of Charles J. in -- 'Strafford v. Minister of Health', 1946 1 KB 621 (D), where the question related to the validity of the confirmation by a Minister of Health of a compulsory purchase order. The learned Judge held that the confirmation order was invalid and should be quashed for the reason as stated in the Head-note that

'a mere notice and grounds of objection did not constitute a presentation of the landowner's case, and, as the local authority had had an opportunity of presenting their ease in detail, the Minister had acted without hearing both sides.' The case arose in an appeal under the Housing Act the appellant objecting to a compulsory purchase order. He had formulated his grounds of objection and they were answered by the Rural District Council which had applied, for the order in great detail and sent to the Minister. But the answers of the Council were never communicated to the appellant. The next thing that he heard in this matter was a notice that the order to which he had objected had been confirmed. The learned Judge considered the case to fall within the observations of Lord Loreburn L.C. in -- 'Board of Education v. Bice', 1911 AC 179, and quoted this passage:

'They can obtain information in any way they think best, always giving a fair opportunity tp those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.' On the view that the appellant had not had any opportunity of controverting the case -made out against him, his appeal was allowed.

9. We are clearly of the opinion that the appellant here has not had a reasonable opportunity of presenting his case and in fact there vvas no enquiry after the charges were formulated.

10. Learned counsel for the appellant urgedthat the appellant had a right to copies of the reports of the officers which were being consideredas part of the material by the Inspector of Municipal Councils and Local Boards acting underSection 47(1) and (3), and that the order was vitiatedby the non-furnishing of such copies. We consider this as a over-statement of the appellant's,rights. While agreeing with the contention thatthe appellant has a right to be informed of whatis appearing in the evidence against him so thathe could have an opportunity of correcting or contradicting it, it is quite another thing to say thathe should be supplied with a copy of the viewsof the officers who have enquired into the matter.In this connection, it is sufficient to refer tothe decision of Swift J. in -- 'Derby (William) andSons Ltd. v. Minister of Health', 1936 1 KB 337(F), where after referring to the fact that theofficer appointed by the Minister to conduct a publie enquiry before a clearance order was made, wasdischarging quasi-judicial functions & that in theexercise of such functions - must be bound by thedictates of natural justice, the learned Judge wenton to say,

'His enquiry must be an inquiry which is fair, to all parties interested. He Must hear everything which any of them desire to say and should not hear anything without giving an opportunity to the other parties interested to answer that which is said: he should not receive anything from one behind the hack of the other, and although he is not bound in any sense by the rules of evidence or procedure which apply to an ordinary Court of law, he must, before making his report, comply with the ordinary dictates of natural justice as to the obtaining and consideration of the matters which go to form the opinions or conclusions which he presses in his report.' This report was submitted to the Minister and the learned Judge held that there was no obligation upon the Minister to disclose the contents of this report which apart from the evidence gathered at the enquiry in which the contending parties had taken part, merely contained the views of the officers who submitted such reports, following the observations of Lord Moulton in 1915 AC 120 (B), We consider that these observations also apply to the present case and that there was no obligation on the part of the Inspector, Municipal Councils and Local Boards to have disclosed the report to the appellant though he was bound to have afforded the appellant an opportunity of meeting the points, made in the report against him.

11. As stated before, we hold that there has been a violation pf Section 47(3), Panchayats Act, 1950, and on the facts of the present case, the appellant's application for the writ should not be refused on the ground that he had a right of applying to the Government for relief.'

12. The appeal succeeds and a writ will issue quashing the order dated 12-10-1954 removing the appellant from the office of the President pf Kivalur Panchayat Board. The appellant is entitled to his costs here. Advocate's fee Rs. 100.


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