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1972 DIGILAW 67 (KAR)

N. S. GIRI v. DIVISIONAL COMMISSIONER, MYSORE DIVISION

1972-03-07

MALIMATH, NARAYANA PAI

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NARAYANA PAI, CJ. ( 1 ) THE Petitioner is a Sanitary Inspector appointed under the Madras public Health Act, 1939 working under the City Municipal Council, Mangalore. He impugns an order made by the Divisional Commissioner, mysore, transferring him to work under the Town Municipal Council, udipi. ( 2 ) THE Order of the Divisional Commissioner was made in exercise of the powers of the State Government under S. 320 of the Mysore Municipalities act, delegated to him under Notification No. S. O. 3818 dated 17th January 1966. ( 3 ) S. 320 of the Mysore Municipalities Act empwers the Government to transfer any Officer or servant of the Municipality to the service of any other Municipal Council notwithstanding anything contained in the said act. ( 4 ) THE contention pressed on behalf of the Petitioner is that he is a person appointed under the provisions of the Madras Public Health Act, 1939 and that the authority or officer who could transfer him is the Director of public Health as expressly provided bv S. 13 of the Mad. P. H. Act. As the power is expresslv conferred bv another statute on a specified officer to make the transfer the argument is that that statutory provision excludes the possibility of any exercise of executive power by the Government. The Madras Public Health Act is still in force in the Madras area of the now State of Mvsore within which is included the District of South kanara. Neither the said Act nor any particular provision of it has been repealed by S. 382 of the Mysore Municipalities Act, S. 320 of the Mvsore municipalities Act has to be given effect to notwithstanding anything contained in the said Act but not notwithstanding anything contained in any other law. ( 5 ) THE argument on behalf of the State Government that under S. 6 of the Madras Public Health Act. the Government has the power of inspection, control and superintendence over the operations of local authorities under the said Act or to define the powers to be exercised by the director of Public Health, does not carrv the matter very far because the power of control or superintendence cannot be so exercised as to remove altogether from the Director of Public Health, the power conferred upon him of transferring persons in the Public Health establishment and conferring the said power on some other authority. ( 6 ) AS both the statutes are in force and in operation in the area with which we are concerned in this case, the principle of harmonious construction requires that power under both the Acts should be so construed as not to curtail or destroy each other. ( 7 ) THEREFORE, the impugned Order made by the Divisional Commissioner in purported exercise of the power of the Government under S. 320 of the Mysore Municipalities Act delegated to the Commissioner whereby he transferred the Petitioner from Mangalore to Udipi is hereby quashed. --- *** --- .