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1956 DIGILAW 61 (KER)

P. Raman Nair v. State

1956-06-25

M.S.MENON

body1956
Judgment :- 1. The petitioner challenges the validity of Ext. A, an order of the Government of Travancore-Cochin dated 1.11.1956. As far as Para.2 of the said order is concerned it is agreed that as no action has been taken in pursuance of the said paragraph I need do no more than reserve the right of the petitioner to move this court afresh, if and when action is taken on the basis of the said paragraph. 2. Para.1 alone of Ext. A has hence to be considered. It reads as follows: "In the G.P. Ls. 15-175/55/DD. dated 11.2.1955 (Ext. B) sanction was accorded to the Kottanad Panchayat to open and conduct a public market at Vellayil junction in Sy. No. 165/1 of Valiakunnamkara and in the G.P. Ls. 15-175/55/DD. dated 18.2.1955 (Ext. C) the above orders dated 11.2.1955 were stayed. Government have reviewed the question in all its aspects and are convinced that the site in Sy. No. 133/2 at Kumbalathanan junction, Kottanad Panchayat, is the suitable site for the public market. The orders contained in G.P. Ls. 15-175/55/DD. dated 11.2.1955 are hereby cancelled. Sanction is hereby accorded to the Kottanad Panchayat to open and conduct the public market in Sy. No. 133/2 of Kumbalathanan junction instead of in Sy. No. 165/1 of Vellayil junction". 3. S.69(2) of the Travancore-Cochin Panchayats Act, 1950, provides: "The panchayat may with the sanction of Government provide places for use as public markets and may with like sanction close any such market or part thereof". and the contention of the learned counsel for the petitioner is that once sanction has been accorded as has been done in this case on 11.2.1955 by Ext. B the Government fades out of the picture and have no further right to reconsider the question or cancel the sanction accorded as they have purported to do by Ext. A. 4. It was not contended that Ext. B will not come within the ambit of S.20 of the Travancore-Cochin Interpretation and General Clauses Act, 1125. That Section provides: "Where, by any Act, a power to issue notifications, orders, rules, or bye-laws is conferred, then that lower includes a power, exercisable in the like manner and subject to the like sanctions and conditions if any, to add to, amend, vary or rescind any notifications, orders, rules, or bye-laws so issued", and should be sufficient to sustain the order impugned before me. The section corresponds to S.21 of the General Clauses Act, 1897. In Durga Prasad v. State of U.P. AIR 1952 Allahabad 959 it was contended that under R.75-A of the Defence of India Rules release of property from requisition was not possible as R.75-A did not expressly provide for such release. The court said: "It is true that the Defence of India R.75-A does not expressly provide for the release of property from requisition, but there is no prohibition also in that rule to that effect. We are of opinion that, having regard to the provisions of S.21, General Clauses Act, 1897, the power to rescind the order of requisition existed. That section provides that where by any Central Act a power to issue orders is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to rescind that order. On general principles also where an authority has got power to requisition a property, by implication it possesses the power, to cancel the requisition and release the property". 5. In AIR 1927 Calcutta 704 the question was whether under S.22 of the Bengal General Clauses Act, 1899, which corresponds to S.20 of the Travancore-Cochin Act, the power to fix a date for election should be taken as including the power to postpone the date so fixed and the court said that "there can be no doubt that, under S.22, Bengal General Clauses Act, the power to fix a date for election must be taken to include the power to postpone any date so fixed". (See also AIR 1945 Patna 44 (52) and Raj Kishore v. State of Uttar Pradesh AIR 1954 Allahabad 343). 6. The last sentence of Para.1 states that "sanction is hereby accorded to the Kottanad Panchayat to open and conduct the public market in Sy.No.133/2 of Kumbalathanam junction". It is agreed that I should make it clear which I do that this sentence does not in any way compel the Panchayat "to open and conduct" a public market "in Sy. No. 133/2 of Kumbalathanam junction unless the Panchayat itself desires to do so. 7. ubject to the observations made above the petition is hereby dismissed; but in the circumstances of the case without any order as to costs.