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Guruvetra Madivala Machideva Sangha Vs. Divisional Commissioner - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 7879 of 1984
Judge
Reported in1985(2)KantLJ178; 1985(2)KarLJ178; 1985(2)KLJ178
ActsKarnataka Municipalities Act, 1964 - Section.306, 522. 322, 206; ConstitutionOf India - Articles 226, 227
AppellantGuruvetra Madivala Machideva SanghA.
RespondentDivisional Commissioner.
Advocates:A.S. Vishwanath; N.Y. Hanumanthappa; S. Uday Shankar, Adv.
Excerpt:
.....the petitioner has also sought for quashing the order dated 29-9-1983 passed by the 2nd respondent-deputy commissioner, shimoga, bearing no. the power under section 306 (2) of the act has not been delegated. s. udayashankar, learned high court government pleader places reliance on section 322 of the act and submits that it is open to the divisional commissioner to exercise the power of revision and revise the order passed by the deputy commissioner under section 306 (1) of the act. if the contention of the learned government pleader is accepted the provisions contained in sub section (2) of section ?06 of the act will be rendered otiose. as per sub-section (2) of section 306 of the act, after an order sub-section (1) thereof is made, the deputy commissioner has to forward to the..........order, a copy of the order is sent to it (see section 306 (3). after the order is forwarded to the state government, sub-section (2) of section 306 of the act, empowers the state government to rescind the order or to direct that it shall continue in force with or without modifications permanently or for such period as it thinks fit. therefore, the provisions contained in sub-section (2) of section 306 of the act make it clear that the divisional commissioner cannot in exercise of his power of revision under section 322 of the act. , revise the order passed under section 306 (1) of the act, unless such power of the state government is delegated to him. the power of the deputy commissioner u/s. 306 (1) is confined to town municipal councils, whereas similar power in relation to city.....
Judgment:

K. A. Swami, J.

(1) IN this petition under Articles 226 and 227 of the Constitution, the petitioner has sought for quashing the order dated 28-3-1984 bearing No. MUN (4) cr. 514,83-84 passed by the Divisional commissioner, Bangalore Division, bangalore produced as Annexure'h'. The petitioner has also sought for quashing the order dated 29-9-1983 passed by the 2nd respondent-Deputy Commissioner, shimoga, bearing No. MUM (1) CR. 490/ 82-83, produced as Anncxure 'f'.

(2) THE fourth respondent has filed an application under Section 306 of the karnataka Municipalities Act 1964 (herein after referred to as the Act), against the Resolution No. MUN (4) CR. 514/83-84 dated 29-3-1984 passed by the third respondent granting a sile to the petitioner-Guruveera Madivala Machideva sanga. Though respondent no. 3 has not been served in the petition it appears to me that this petition need not wait for the service of the 3rd respondent having regard to the nature of the order that is required to be passed in this case.

(3) THE Deputy Commissioner by the impugned order dated 29-9-1983 (Annexure 'f') in exercise of his power under Section 306 (1) of the Act has suspended the resolution of the 3rd respondent on coming to the conclusion that it is required to be set aside. The petitioner has challenged the afore said order in Revision before the Divisional commissioner (first respondent), who by the impugned order dated 29th March, 1984 has affirmed the order passed by the deputy Commissioner.

(4) IT appears to be that the order dated 28th March 1984 passed by the first respondent is without jurisdiction. The power under Section 306 (2) of the act has not been delegated. At any rate, it is not shown to me that it is delegated to the first respondent. It is only the Government which is vested with the power under Section 306 (2) of the Act, either to confirm or set aside the order of the Deputy Commissioner. However, Sri. S. Udayashankar, learned high Court Government Pleader places reliance on Section 322 of the Act and submits that it is open to the Divisional commissioner to exercise the power of revision and revise the order passed by the Deputy Commissioner under Section 306 (1) of the Act. No doubt Section 322 of the Act is very widely worded. But this provision has to be read along with Section 306 (2) of the Act. If the contention of the learned Government pleader is accepted the provisions contained in sub section (2) of Section ?06 of the Act will be rendered otiose. Normally no surplusage is attributed to the legislature. It is opposed to rules of interpretation. As far as possible all the provisions of the enactment must be given due meaning. While interpreting the provisions of the Act, the court must endeavour to see that the object of the Act is not defeated and no provision of the Act is rendered nugatory. Therefore, on a proper reading of both the provisions together, I am of the view that in a case which falls under Section 306 (1) of the Act, the Divisional commissioner has no power to revise under Section 322. As per sub-section (2) of Section 306 of the Act, after an order sub-section (1) thereof is made, the Deputy Commissioner has to forward to the Government and to the Commissioner and to the Municipal Council affected thereby, a copy of the order with a statement of the reasons for making it. Of course a copy of the order is sent to Commissioner only for the purpose of information. As far as the Muncipal Council is concerned it is an affected party. Therefore in order to enable it to show cause against the order, a copy of the order is sent to it (see section 306 (3). After the order is forwarded to the State Government, sub-section (2) of Section 306 of the Act, empowers the State Government to rescind the order or to direct that it shall continue in force with or without modifications permanently or for such period as it thinks fit. Therefore, the provisions contained in sub-section (2) of Section 306 of the Act make it clear that the Divisional Commissioner cannot in exercise of his power of revision under Section 322 of the Act. , revise the order passed under Section 306 (1) of the act, unless such power of the State government is delegated to him. The power of the Deputy Commissioner u/s. 306 (1) is confined to Town Municipal councils, whereas similar power in relation to City Municipal Councils is vested in the Commissioner as per Section 309 of the Act. In that case also, the Divisional Commissioner has to forward to the Government a copy of the order as per Section 306 (2) of the Act. Therefore, in a case falling under subsection (1) of Section 206 of the Act, the order passed by the Deputy Commissioner cannot be revised by the commissioner in exercise of his power of revision under Section 322 of the Act. It is only the State Government which has the ultimate power and not the commissioner. Therefore, this Writ petition has to be allowed in part.

(5) ACCORDINGLY, this petition is allowed in part. The impugned order dated 28-3-1984 bearing No. MUN (4) cr. 514/83-84 passed by the Divisional commissioner, Bangalore Division, bangalore is hereby quashed. The deputy Commissioner, Shimoga is directed to forward to the State Government and also to the Commissioner and to the Municipal Council a copy of the order with the statement of reasons as per sub-section (2) of Section 306 of the act, within 4 weeks from the date of the receipt of this order. Sri S. Udayashankar, learned High court Government Pleader is permitted to file his memo appearance within six weeks.


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