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1969 DIGILAW 279 (ALL)

Tula Ram Pradhan v. Sub Divisional Officer, Agra

1969-09-22

SATISH CHANDRA

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ORDER Satish Chandra, J. - The Petitioner was the Pradhan of the Gaon Sabha, Barauli Gujar, district Agra. The S.D.O. served a charge sheet on the Petitioner and after holding an enquiry, removed him from office, on the finding that the charges were established. Against this order dated 31-3-1967, the Petitioner filed an appeal to the DM. On the date fixed for the hearing of the appeal, namely on 19-3-1968, the Petitioner failed to appear. The ADM dismissed the appeal for default of appearance. The Petitioner made an application for restoration, which was also dismissed. Ultimately, the Petitioner has come to this Court. The writ petition has been pressed on two grounds: (1) That the ADM had no jurisdiction to entertain or decide the Petitioner's appeal. (2) That the appeal could not, in law, be dismissed for default of appearance. It ought to have been decided on the merits. 2. Section 95 of the UP Panchayat Raj Act confers on the State Government power to remove a Pradhan. Section 96-A of the Act authorises the State Government to delegate all or any of its powers to any authority subordinate to it subject to such conditions and restrictions as it may deem fit to impose. In exercise of this power, the State Government by a notification dated 9-5-1958, delegated its power Under Clause (g) of Sub-section (1) of Section 95 of the Act to the SDO, "subject to the condition that no order for removal shall take effect unless it is confirmed by the DM within a period of 30 days from the date on which the order was passed by the SDO." On 16-12-1958, the State Government superseded its notification dated 9-5-1958, by another notification. This notification conferred the powers of the State Government Under Clause (g) of Sub-section (1) of Section 95 of the Act to the SDO "provided that an order for removal passed by SDO shall be subject to appeal before the DM within 30 days from the date of such order". So, previously, a duty was cast on the DM to confirm an order of removal u/s 95(1)(g). That may have involved the determination of the questions, involved in the order, on the merits by the DM. But, the second notification dated 16-12-1958, changed the position. Under it, the order of the SDO was operative of its own force. It did not require any confirmation. That may have involved the determination of the questions, involved in the order, on the merits by the DM. But, the second notification dated 16-12-1958, changed the position. Under it, the order of the SDO was operative of its own force. It did not require any confirmation. The aggrieved party had a right of appeal, as the order of the SDO was made subject to an appeal before the DM. 3. It was urged by the learned Counsel that the DM had no power to transfer the appeal to the ADM. He had to decide the appeal himself. Clause (e) of Section 2 of the Act defines the term 'DM' to include 'an ADM'. The notification dated 16-12-1958, was issued u/s 96-A of the Act. It did not itself define the term 'DM' used in it. In my opinion, the definition clause which governs the various provisions of the Act would also be applicable to the notifications made in exercise of powers conferred by the Act. The term 'DM' will be deemed to have been used in the notification in accordance with the definition given in the Act. From this point of view, the term 'DM' used in the notification will include an ADM. As such, the ADM had the necessary power to decide the appeal. 4. The learned Counsel for the Petitioner relied upon the Supreme Court decision in Hari Chand Aggarwal Vs. Batala Engineering Co. Ltd., AIR 1969 SC 483 . In that case, it was held that Section 40 of the Defence of India Act, 1962, empowered the Government to delegate its powers to the specified authorities. The relevant notification empowered the DM to exercise the powers u/s 29 of the Act. The Supreme Court held that an ADM could not requisition a property under that section. ADM was not competent to exercise that power, simply because he was invested with the powers of the DxM u/s 10(2), Code of Criminal Procedure. The case is not helpful, because here the definition clause itself includes an ADM within the term 'District Magistrate'. This would permit delegation of the power by the State Govt. to the ADM as well. The case of Central Talkies v. Dwarka Prasad 1961 AWR 238 SC is more in point. Under the UP Rent Control Act, a suit could be filed for the ejectment of a tenant after the permission of the DM. This would permit delegation of the power by the State Govt. to the ADM as well. The case of Central Talkies v. Dwarka Prasad 1961 AWR 238 SC is more in point. Under the UP Rent Control Act, a suit could be filed for the ejectment of a tenant after the permission of the DM. The Supreme Court in that case held that an ADM would be a DM within meaning of that Act. The Court repelled the argument that the DM was a persona designata. It observed that the Legislature had not conferred powers by the Rent Control Act upon the DM in his individual or private capacity, but in his capacity as holding a particular office, namely, that of the DM. Similarly, under the UP Panchayat Raj Act, no individual DM has been invested with the power personally. All the DMs have been empowered. Whoever be the DM for the time being would be entitled to exercise the power to decide an appeal u/s 95(1)(g) of the Act. It cannot be said that the DM was a persona designata under the Panchayat Raj Act. 5. But this is really besides the point. Even if it be held that the DM was a persona designata, the result would be no different, as the ADM has expressly been included within the definition of the 'District Magistrate' under the Panchayat Raj Act. So far as the exercise of powers under that Act is concerned, an ADM is the DM. In my opinion, therefore, the ADM had jurisdiction to dispose of the Petitioner's appeal. 6. The second point urged by the learned Counsel was that the DM had no power to dismiss the appeal for default of appearance. It was incumbent upon him to decide the appeal on the merits. In support of this proposition, reliance was placed upon M.X. De Nornha v. Commissioner of Income Tax 1950 ITR 928 (935). There, the Bench interpreted the phrase "hear and determine". It observed that the dismissal for default cannot be said to be the hearing and determination of the appeal. The word 'determination' means decision of the points raised in the case and not an order of dismissal for default. The case is distinguishable. Here, the relevant notification does not require the appellate authority to hear and determine the appeal. It observed that the dismissal for default cannot be said to be the hearing and determination of the appeal. The word 'determination' means decision of the points raised in the case and not an order of dismissal for default. The case is distinguishable. Here, the relevant notification does not require the appellate authority to hear and determine the appeal. The notification only says that the order of the SDO will be subject to an appeal before the DM. It leaves the DM free to decide the manner of hearing, if any, as well as the mode of deciding the appeal. 7. In K.L. Sehgal v. Commissioner 1969 AWR 622 , I held that the revisional power conferred on the Commissioner u/s 3 of the Rent Control Act was validly exercised, even if the Commissioner dismisses the revision for default. In my opinion, the question of the ambit of a particular jurisdiction conferred on a superior authority is determinable by the language of the provision conferring that jurisdiction. This is really not a matter of any inherent right either in the statutory authority or in the litigant. It is true that a statutory tribunal does not possess inherent powers, as a court of law does. That is why it is incumbent to see and examine the provision conferring the jurisdiction to find the nature and extent of the jurisdiction. We have seen that the notification delegating the power u/s 95(1)(g) conferred a right of appeal on the Pradhan by saying that the order shall be subject to an appeal to the DM. The State Government having left the matter at that obviously conferred a wide appellate jurisdiction upon the DM. It was not confined or restricted in any manner. No duty was cast upon the DM to himself examine the record and then to pass orders. The DM was not made bound to hear and determine the appeal. In the light of these aspects, I am unable to agree with the learned Counsel that the DM was confined to decide the validity of the order of removal on the merits. 8. The State Government conferred the right of appeal on the Pradhan. This would imply that the Pradhan was under a duty to satisfy the appellate authority of the merits in his appeal. In my opinion, the ADM had jurisdiction to dismiss the appeal for default of appearance also. 8. The State Government conferred the right of appeal on the Pradhan. This would imply that the Pradhan was under a duty to satisfy the appellate authority of the merits in his appeal. In my opinion, the ADM had jurisdiction to dismiss the appeal for default of appearance also. The petition fails and is accordingly dismissed with costs.